Entergy Corp v. EPA; PSEG Fossil LLC v. Riverkeeper, Inc.


May the EPA perform a cost-benefit analysis to decide which technologies best minimize adverse environmental impacts on marine life stemming from cooling water intake structures?

Oral argument: 
December 2, 2008


Cooling water intake structures divert billions of gallons of water into coolant systems for industrial equipment and power generation. These systems can injure or kill billions of aquatic organisms, resulting in severe environmental impacts. Congress sought to remedy this problem through 33 U.S.C. §1326(b). The statute requires that “cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” The “best technology available” requirement is the heart of the dispute. In enforcing the statute, the Environmental Protection Agency (“EPA”) turned to a cost-benefit analysis. If the cost of a particular technology was not justified by a corresponding environmental benefit, the technology was not required. Environmental groups sued to require the EPA to employ a cost only analysis. This analysis requires the best technology a facility could afford, even if the environmental benefit generated was minimal. This case will affect the EPA’s method of regulating cooling water intake structures, potentially leading to greater costs for power plants and industry. Increased costs may disrupt the energy industry and potentially lead to greater costs for consumers.

Questions as Framed for the Court by the Parties 

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 cases are consolidated and a total of one hour is allotted for oral argument.


Industry diverts billions of gallons of water a day into water-intake coolant systems in order to cool industrial equipment and also to generate power. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 181 (2d. Cir. 2004). Though this water is returned to the environment, this can result in the destruction of some or all of the fish species in that water, drastically altering the content of the earth’s bodies of water. See id. Congress sought to solve this problem in § 316(b) of the Clean Water Act (“CWA”). See CWA § 316(b),33 U.S.C. § 1326(b). The statute requires that “the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” Id. The CWA requires the Environmental Protection Agency (“EPA”) to uphold § 316(b) by issuing regulations for these water-intake coolant systems to ensure that industry complies with its directives. See id.

In 1993, the environmental group Riverkeeper, Inc., along with other groups, sued the EPA for failing to issue regulations upholding § 316(b). See Riverkeeper, Inc., et al. v. EPA (“Riverkeeper II”), 475 F.3d 83, 90 (2007). The EPA responded with a three-phase rule governing new intake structures, existing intake structures, and smaller facilities; it promulgated a Phase II rule for existing intake structures in 2004. See id. at 92. The rule holds that the standard for following § 316(b) is a cost-benefit analysis when determining whether facilities are using the “best technology available” for their cooling structures in preventing environmental harm. See id. at 91–94. This standard compares the monetary costs of the most effective cooling structures (in terms of § 316(b)) with how much aquatic life is to be saved. See id.

Riverkeeper and a variety of other environmental groups (“Riverkeeper et al.”) again sued the EPA, this time with several coastal state petitioners: Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York (“state petitioners”). See id. at 96. The environmental groups have an overarching concern for the protection of aquatic life, and are especially concerned with how the EPA upholds its duties under the Clean Water Act. The state petitioners have a more immediate concern in that coolant systems directly affect both their coastal waters and their bodies of water connecting to the coast. The environmental and state petitioners contended that the Phase II cost-benefit rule is deficient because the EPA exceeded its authority and engaged in improper cost considerations, creating a very lax standard and failing in its duty to uphold § 316(b). See Riverkeeper II, 475 F.3d at 96–97. A series of industry groups joined the EPA in defending the cost-benefit standard for § 316(b): Entergy Corporation (“Entergy”), the Utility Water Act Group (“UWAG”), and PSEG Fossil LLC and PSEG Nuclear LLC (“PSEG”). See id. These industry groups are particularly concerned because the standard the EPA promulgates directly affects them; though they are in compliance with the cost-benefit standard, a stricter rule would most likely require them to update existing or install new cooling structures, at a huge cost. See Brief of Amicus Curiae American Chemistry Council, et al. in Support of Petitioners, at 1Brief for Petitioners Entergy Corp., PSEG Fossil LLC, & PSEG Nuclear LLCA (Entergy Corp. et al.) at 49–50.

The Second Circuit ruled in favor of the environmental and state petitioners, holding that the application of a “cost-benefit analysis” was improper, in that it is not in keeping with the language of § 316(b) and thwarts Congress’s intent in passing the statute. See Riverkeeper II, 475 F.3d at 101. Instead, after considering the statute itself and the Act as a whole, the Court held that the proper standard to apply is one that considers “feasibility” – whether the best technology available is in fact feasible to apply to the industry in question. See id. at 99. The Court determined that the EPA could consider cost only after it had determined what the most effective technology, in terms of § 316(b), is, and whether that technology could reasonably be borne by the industry as a wholeSee id. at 99–100. Only after determining what technology meets the “most effective” benchmark can the EPA consider factors of cost-effectiveness, which might allow for a cheaper solution that has essentially the same effect on wildlife as the established benchmark. See id. at 100.

The industry groups and the EPA each appealed the Second Circuit ruling, arguing that it improperly interpreted § 316(b) of the CWA, and that the language of the section and the Act in fact grants the EPA authority to use a cost-benefit analysis. The Supreme Court granted certiorari in April 2008.


At issue is the lower court’s ruling on the interpretation of one section of the Clean Water Act: whether § 316(b) authorizes the EPA to use a cost-benefit analysis in following the directive that industries use “the best technology available for minimizing adverse environmental impact” at cooling water intake structures. The Second Circuit ruled that the statement “best technology available” does not allow for cost-benefit considerations to be taken, but instead requires industries to follow a narrower interpretation of the statute. See Riverkeeper, Inc., v. EPA (“Riverkeeper II”), 475 F.3d 83, 101. Petitioners contest this interpretation, while Respondents argue that the Second Circuit’s ruling is consistent with the intent and meaning behind the statute.

Plain Language of the Statute

Parties on both sides point to the plain language of the statute as supporting their interpretations of § 316(b). The industry groups contend that the statute’s language shows that Congress intended for the EPA to use a cost-benefit analysis when determining whether industries had the “best technology available.” See Brief for Federal Parties as Respondents Supporting Petitioners at 10; Brief of Petitioner Utility Water Act Group at 26–27. Furthermore, because Congress never expressly prohibited the EPA from doing such an analysis, the statute impliedly gives the agency authority to do so. See Brief for Federal Parties at 11; Brief of Petitioner Utility Water Act Group at 27. The federal parties argue that when considering the “best technology available,” the phrase does not mean “best” without any reference to other factors, but instead should be interpreted more holistically, as taking in considerations of cost. See Brief for Federal Parties at 11–12.  Furthermore, they state that the plain meaning of what methods are “available” generally means availability depending on cost. See id. at 11. The industry parties argue that determining availability includes determining what is “economically reasonable.” See Brief for Petitioners Entergy Corp., PSEG Fossil LLC, & PSEG Nuclear LLCA (Entergy Corp. et al.) at 22. In sum, these parties argue that because the statute made no mention of forbidding cost-benefit analysis, and the plain meaning of the statute’s language infers such permission, the EPA has the freedom to consider many different factors in determining “best technology available,” including cost. See Brief for Petitioner Utility Water Act Group at 26–27.

Environmental groups and several states, on the other hand, argue that the plain meaning of this same language clearly shows that Congress intended for cost to be a secondary factor. See Brief for the States as Respondents at 15–16.  According to the states, because the language “best technology available” was not qualified by any other considerations such as cost, Congress did not intend that the EPA’s role in minimizing adverse environmental impact include the ability to make value judgments about whether they are cost-effective. See id. at 16. The environmental groups contend that such an analysis is bolstered by the fact that Congress did not expressly tell the EPA to consider cost in determining the “best technology available”: instead, Congress deliberately adopted a technology-based performance standard. See Brief for Respondents Riverkeeper, Inc., et al. at 19–20. Thus, as all the parties contend, the EPA may consider the feasibility of technology in determining whether it is the best way of minimizing adverse effects, but cost cannot be a main consideration. See Brief for the States as Respondents at 16.

§ 316(b) in Context

The federal parties and industry groups contend that because § 316(b) of the Clean Water Act cross-references other sections of the Act promulgating several other “best” standards that do expressly require the EPA to consider costs, the EPA’s consideration of costs and benefits is at best implied and at the very least reasonable in this context. See Brief for Federal Parties at 10–12.

The state party respondents counter this argument, contending that because the Clean Water Act does require the EPA to consider costs in relation to benefits in certain other contexts, Congress could not have intended for the EPA to consider costs in the context of § 316(b) when it expressly told the Agency in what contexts it could do so. See Brief for the States as Respondents at 16.  The environmental groups contend that Congress would have expressly provided for the EPA to engage in a cost-benefit analysis, as it does in other sections of the Act, if it had intended for the Agency to do so. See Brief for Respondents Riverkeeper, Inc. et al. at 20.

The federal parties, contend that the special nature of § 316(b), in comparison with the rest of the statute, also grants the EPA greater authority in determining a “best technology available” standard. See Brief for Federal Parties at 11–12. They argue that because it is the only section that does not govern the discharge of pollutants, but is instead more of an “afterthought” dealing with the intake of water, it did not receive the detailed provisions Congress made in those parts. See id. at 11. Instead, Congress left the determination of this “afterthought” standard to the authority of the EPA, as it was much more concerned with other provisions in the ActSee id. at 11–12.

Congressional Intent

Riverkeeper and the other environmental groups disagree that the special nature of § 316(b) in light of the rest of the Act gives the EPA more authority to determine the proper standard of “best technology available,” arguing that such an interpretation ignores the legislative history of the statute. See generally Brief for Respondents Riverkeeper, Inc., et al. at 20–21. This portion of the Act itself represents a legislative compromise over the very issue of whether to give the EPA authority to establish its own standard in determining water pollution controls, and, they point out, the final draft “repeatedly eliminated language” authorizing the EPA to do cost-benefit analysis. See id. at 21. They argue that the specific situations in the Act where Congress allowed the EPA to undertake cost-benefit analysis should be viewed as a congressional compromise, in exchange for requiring the EPA to apply a strict technology-based approach to § 316(b)See id. To ignore this legislative context, they say, is to ignore the clear policy choice Congress compromised over, in opting for a narrow standard of interpretation. See id.

On the other hand, the industry groups contend that if the Clean Water Act is to be interpreted the way the Second Circuit has held—as containing a strict technology-based approach with no authority given to the EPA in determining the standard—this approach would result in huge costs for minimal benefit that Congress could not have intended. See Brief for Petitioners Entergy Corp. et al. at 22–23. They argue that if the EPA must ignore cost-benefit considerations and opt for the best technology available in every case, this would lead to situations of facilities expending great amounts of money to prevent any adverse effect, even those that Congress would consider “trivial.” See id. at 23. Besides the negative impact this would have on industry, these groups point out that this would also prevent facilities from operating even when they harm only “nuisance” fish that state regulators want to see diminished. See id. They warn that such scenarios are likely if the Court concludes that Congress indeed took away the independent judgment of the EPA. See Brief of Petitioner Utility Water Act Group at 28.

“Gap-Filling” the Act’s Ambiguities

The industry groups contend that, at the very least, the Act’s meaning is ambiguous and the EPA is entitled to deference in how it interprets § 316(b)See Brief of Petitioners Entergy Corp. et al. at 23. This ambiguity, the groups argue, stems from the fact that the statute does not state expressly whether the EPA may use a cost-benefit analysis, or what should qualify as “best available technology.” See Brief of Petitioner Utility Water Act Group at 27. The Utility Water Act Group in particular contends that Congress would never inappropriately hinder the EPA’s judgment in the way the Second Circuit has done, and instead intended to follow a history and tradition of deferring to the EPA’s determination of a statute’s meaning, where ambiguous. See id.  The Federal Parties also contend that Congressional silence in a particular statute confers discretion to the agency in charge of interpreting that statute. See Brief for Federal Parties at 10–12. To do otherwise, the industry groups contend, would hinder the statutory objective of the Act because it would prevent the EPA from analyzing all relevant factors in considering “best technology available,” which is what the Act authorizes the EPA to do. See Brief of Petitioner Utility Water Act Group at 27–28.

The industry groups also argue that the Second Circuit is wrong in believing that there is a presumption that the EPA may apply a cost-benefit analysis only if Congress expressly states that it may. See Brief of Petitioners Entergy Corp. et al. at 21. They point out that Congress would instead intend that agencies implement statutes in ways that cause more good than harm, and so would be prepared to authorize agencies to ensure they are carried out in that manner, with consideration given to all of the effects of a particular application. See id. at 21–22. Furthermore, the industry groups point to the fact that Congress has never addressed how the EPA has interpreted the Clean Water Act or its various sections, including the application of a cost-benefit analysis to § 316(b)See id. at 21–22.

The environmental groups contend, on the other hand, that deference to the EPA’s interpretation is not an issue because the Act has no ambiguities and Congress has answered all major interpretive questions, including whether or not the EPA can engage in cost-benefit analysis. See Brief for Respondent Riverkeeper, Inc. at 19–21. Congress could not have meant for the EPA to “gap-fill” the determinative standard when it clearly left no ambiguity on the issue. See id. at 20–21. The state parties, pointing to the language, context, and legislative history of the statute, contend that the absence of an express reference to using cost-benefit analysis does not mean there is an ambiguity when Congress’s intent to use a strict technology-based approach is clear. See Brief for the States as Respondents at 16–17.


Although the billions of gallons of water diverted for industrial cooling purposes is ultimately returned to the environment, the environment is not made whole. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 181 (2d. Cir. 2004).The process of drawing this vast quantity of water into coolant systems generates suction, along the lines of sucking up liquid through a straw. See id.This suction traps fish and other larger marine life against the intake, causing injury or death. See id. Smaller organisms, such as plankton or eggs, pass into the system. See id. While one might imagine a few fish stuck against a grate, the impact is far greater. See id.As the court in Riverkeeper I noted, “[a] single power plant might impinge a million adult fish in just a three-week period, or entrain some 3 to 4 billion smaller fish and shellfish in a year, destabilizing wildlife populations in the surrounding ecosystem.” Id.

Congress addressed this problem in the Clean Water ActSee 33 U.S.C. §1326(b). The statute “require[s] that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” Id. Industry and the Environmental Protection Agency (“EPA”) argue that the statute allows the EPA to run a cost-benefit analysis. See Brief of Petitioner Utility Water Act Group at 31; Brief for Federal Parties as Respondents Supporting Petitioners at 13. Much like an investment, the resulting environmental benefits would need to exceed the monetary cost and efforts of the upgrade. The environmental groups argue that industry must use the “best technology available” without the use of a cost-benefit analysis. See Brief for Respondents Riverkeeper, Inc., et al. at 19–20.

Under the “best technology available” requirement, the best technology is not necessarily required. See Brief for Respondents Riverkeeper, Inc., et al. at 20. If an industry cannot afford the “best technology” then that technology is not “available.” See id.Thus, under the “best technology available” approach advocated by the environmental groups, industry would be required to install the best technology they could afford. See id.

Implications from the choice of upgrade: Money

One of the most basic implications of the Court’s decision in this case concerns money. If a plant is required to install the best technology they can afford, then that plant may be forced to install a very expensive upgrade that would have little advantage over a much cheaper, though slightly less effective, solution. See Brief for Petitioners Entergy Corp., PSEG Fossil LLC, & PSEG Nuclear LLCA (Entergy Corp. et al.) at 49–50. As a result, industry would be forced to implement expensive upgrades that have little environmental advantage instead of the cheaper technologies permissible under the cost-benefit approach. See id. Thus, a primary implication of the case concerns the level of cost placed on industry. See Brief of Amicus Curiae American Chemistry Council, et al. in Support of Petitioners at 1.

Moreover, upgrading to the “best technology available” would not be a one-time event. See Brief for Petitioners Entergy Corp. et al. at 50–51. As new technologies are developed, plants may be forced to repeatedly pay for expensive upgrades with only marginal improvement in benefits to the environment. See id.

The costs of these upgrades would not necessarily be confined to the coffers of the power plants. Nebraska and seventeen other states supporting the Utility Water Act Group point out that plants may pass those costs on to consumers. See Brief of Amicus Curiae State of Nebraska, et al. in Support of Petitioners at 11. Elsewhere in the energy industry, the American Petroleum Institute raises concerns that costs applied to upgrading coolant systems at domestic oil and gas facilities may also be passed on to consumers. See Brief of Amicus Curiae American Petroleum Institute at 2. Moreover, according to the American Chemistry Counsel, “cooling water intake structures” regulation applies generally, not just to the power industry. See Brief of Amicus Curiae American Chemistry Council, et al. in Support of Petitioners at 3. Thus, any industry requiring cooling water intake structures could face a larger cost burden if the Court rejects the cost-benefit approach. See id.

Effects of the upgrade

While an upgrade may be affordable, it may not be possible to force it on the industry without significant repercussions. The California Council for Environmental and Economic Balance states in its brief that compliance with this and other environmental regulations could lead some critical power plants to simply shut down. See Brief of Amicus Curiae California Council for Environmental and Economic Balance in Support of Petitioners at 10. Applying this possibility to the nuclear power industry, the Nuclear Energy Institute (“NEI”) cites concerns that fossil fuel plants may replace nuclear facilities. See Brief of Amicus Curiae Nuclear Energy Institute in Support of Petitioners at 2–4. According to the NEI, nuclear power plants provide twenty percent of the nation’s power, produce no greenhouse gasses, and stabilize energy prices. See id. Their shutdown and replacement with fossil fuel facilities would destroy these advantages and lead to potentially greater environmental problems down the road. See id. Even if a plant is willing to upgrade, it may be unable to comply. As Entergy argues, retrofitting power plants may cause them to be taken offline, resulting in stability problems for the supply of electricity. See Brief for Petitioners Entergy Corp. et al. at 52.  

Impact on the environment

While cost-benefit may seem to be straightforward, environmental groups and some industries argue that it is not clear-cut. See Brief of Amicus Curiae National Wildlife Federation and Sierra Club in Support of Respondents at 1–3. The problem lies in defining “benefit” so that it is possible to compare environmental benefits with the monetary costs and difficulties associated with an upgrade. See id. While an upgrade may cost a certain amount of money and cause a certain amount of down-time, it is difficult to place a value on the environmental benefits. See id. The difficulty in placing a value on the environment is not necessarily a philosophical problem — current scientific tools may be unable to gauge a facility’s actual impact on an ecosystem. See id. For example, the Commercial Fishermen of America argues that the EPA does not adequately capture damage to fish populations in the cost-benefit analysis. See Brief of Amicus Curiae Commercial Fishermen of America, et al. in Support of Respondents at 4. Essentially, as the National Wildlife Federation and the Sierra Club argue, nebulous benefit determinations will not properly address the environmental harms Congress sought to avoid. See Brief of Amicus Curiae National Wildlife Federation and Sierra Club in Support of Respondents at 1–3. However, denying the EPA the ability to look at benefits could lead to expensive upgrades which offer only slight improvements over cheaper technology. See Brief for Petitioners Entergy Corp. et al. at 49–52.  


The Supreme Court’s ruling on the permissibility of a cost-benefit analysis will have an effect on the way industry complies with the Clean Water Act. If the Supreme Court decides against the cost-benefit approach, as the Second Circuit did,  industry  may be forced to apply expensive upgrades with little environmental benefits over cheaper alternatives. These upgrades may disrupt the energy industry and supply. Moreover, additional costs for the best affordable technology may be passed along to consumers. If the Supreme Court decides in favor of the EPA’s cost-benefit approach,  industry  would continue operating much as it has been. While this approach would not result in a freeze on upgrades, the EPA’s arguably inadequate weighing of benefits in the cost-benefit analysis could continue the kind of environmental degradation Congress sought to avoid.

Edited by