Entergy Corp. v. Riverkeeper, Inc.

• Decision Date: 01 April 2009
• Docket Number: 07–597.,07–589,Nos. 07–588,s. 07–588
• Citation: 173 L.Ed.2d 369,129 S.Ct. 1498,556 U.S. 208
• Parties: ENTERGY CORPORATION, Petitioner, v. RIVERKEEPER, INC., et al. PSEG Fossil LLC, et al., Petitioners, v. Riverkeeper, Inc., et al. Utility Water Act Group, Petitioner, v. Riverkeeper, Inc., et al.
• Court: U.S. Supreme Court

556 U.S. 208

129 S.Ct. 1498

173 L.Ed.2d 369

ENTERGY CORPORATION, Petitioner

v.RIVERKEEPER, INC., et al.

PSEG Fossil LLC, et al., Petitioners

v.Riverkeeper, Inc., et al.

Utility Water Act Group, Petitioner

v.Riverkeeper, Inc., et al.

Nos. 07–588

07–589

07–597.

Supreme Court of the United States

Argued Dec. 2, 2008.

Decided April 1, 2009.

Daryl Joseffer, for the Environmental Protection Agance, et al.

Maureen Mahoney, for the petitioners.

Richard J. Lazarus, for the respondents.

Gregory G. Garre, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for the Federal Parties as Respondents Supporting Petitioners.

Elise E. Zoli, Counsel of Record, Kevin P. Martin, Robert H. Fitzgerald, Aladdine D. Joroff, Kevin P. Pechulis, Goodwin Procter LLP, Boston, MA, Maureen E. Mahoney, Counsel of Record, Philip J. Perry, J. Scott Ballenger, Cassandra Sturkie, Drew C. Ensign, Latham & Watkins LLP, Washington, DC, Abigail Hemani, Goodwln Procter LLP, New York, NY, Chuck D. Barlow, Entergy Services, Inc., Jackson, MS, Karl S. Lytz, Latham & Watkins LLP, San Francisco, CA, John G. Valeri, Jr., PSEG Services Corp., Office of Environmental Counsel, Newark, NJ, for Petitioners Entergy Corp., PSEG Fossil LLC, and PSEG Nuclear LLC.

Kristy A. N. Bulleit, Counsel of Record, Hunton & Williams LLP, Washington, DC, for Petitioner Utility Water Act Group.

Edward Lloyd, Environmental Law Clinic, Columbia University School of Law, New York, NY, P. Kent Correll, New York, NY, Richard J. Lazarus, Counsel of Record, Washington, DC, Reed W. Super, New York, NY, for Respondents Riverkeeper, Inc., et al.

Patrick C. Lynch, Attorney General of Rhode Island, Tricia O'Hare Jedele, Counsel of Record, Special Assistant Attorney General, Providence, RI, Richard Blumenthal, Attorney General of Connecticut, Kimberly Massicotte, Matthew Levine, Assistant Attorneys General, Hartford, CT, Martha Coakley, Attorney General of Massachusetts, Andrew Goldberg, Assistant Attorney General, Boston, MA, Andrew M. Cuomo, Attorney General of New York, Barbara D. Underwood, Solicitor General, Andy D. Bing, Deputy Solicitor General, Denise A. Hartman, Assistant Solicitor General, Maureen F. Leary, Assistant Attorney General, Albany, NY, Joseph R. Biden III, Attorney General of Delaware, Kevin Maloney, Deputy Attorney General, Wilmington, DE, Anne Milgram, Attorney General of New Jersey, Ellen Barney Balint, Deputy Attorney General, Trenton, NJ, for States as respondents.

Patricia K. Hirsch, Acting General Counsel, Richard T. Witt, Attorney, Environmental Protection Agency, Washington, D.C., Gregory G. Garre, Acting Solicitor General, Counsel of Record, Ronald J. Tenpas, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Daryl Joseffer, Assistant to the Solicitor General, David S. Gualtieri, Cynthia J. Morris, Jessica O'Donnell, Attorneys, Department of Justice, Washington, D.C., for the Federal Parties as Respondents Supporting Petitioners.

Opinion

Justice SCALIA delivered the opinion of the Court.

These cases concern a set of regulations adopted by the Environmental Protection Agency (EPA or agency) under § 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b). 69 Fed.Reg. 41576 (2004). Respondents—environmental groups and various States¹ —challenged those regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F.3d 83, 99–100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under § 1326(b).

I

Petitioners operate—or represent those who operate—large powerplants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ “cooling water intake structures” that extract water from nearby water sources. These structures pose various threats to the environment, chief among them the squashing against intake screens (elegantly called “impingement”) or suction into the cooling system (“entrainment”) of aquatic organisms that live in the affected water sources. See 69 Fed.Reg. 41586. Accordingly, the facilities are subject to regulation under the Clean Water Act, 33 U.S.C. § 1251 et seq., which mandates:

“Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” § 1326(b).

Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate the discharge of effluents into the Nation's waters.

The § 1326(b) regulations at issue here were promulgated by the EPA after nearly three decades in which the determination of the “best technology available for minimizing [cooling water intake structures'] adverse environmental impact” was made by permit-issuing authorities on a case-by-case basis, without benefit of a governing regulation. The EPA's initial attempt at such a regulation came to nought when the Fourth Circuit determined that the agency had failed to adhere to the procedural requirements of the Administrative Procedure Act. Appalachian Power Co. v. Train, 566 F.2d 451, 457 (1977). The EPA withdrew the regulation, 44 Fed.Reg. 32956 (1979), and instead published “draft guidance” for use in implementing § 1326(b)'s requirements via site-specific permit decisions under § 1342. See EPA, Office of Water Enforcement Permits Div., {Draft} Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92–500, (May 1, 1977), at http://www.epa.gov/ waterscience/316 b/files/1977AEIguid.pdf, (all Internet materials as visited Mar. 30, 2009, and available in Clerk of Court's case file); 69 Fed.Reg. 41584 (describing system of case-by-case permits under the draft guidance).

In 1995, the EPA entered into a consent decree which, as subsequently amended, set a multiphase timetable for the EPA to promulgate regulations under § 1326(b). See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314(AGS), 2001 WL 1505497, *1 (S.D.N.Y., Nov. 27, 2001). In the first phase the EPA adopted regulations governing certain new, large cooling water intake structures. 66 Fed.Reg. 65256 (2001) (Phase I rules); see 40 CFR §§ 125.80(a), 125.81(a) (2008). Those rules require new facilities with water-intake flow greater than 10 million gallons per day to, among other things, restrict their inflow “to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.”² § 125.84(b)(1). New facilities with water-intake flow between 2 million and 10 million gallons per day may alternatively comply by, among other things, reducing the volume and velocity of water removal to certain levels. § 125.84(c). And all facilities may alternatively comply by demonstrating, among other things, “that the technologies employed will reduce the level of adverse environmental impact ... to a comparable level” to what would be achieved by using a closed-cycle cooling system. § 125.84(d). These regulations were upheld in large part by the Second Circuit in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2004).

The EPA then adopted the so-called “Phase II” rules at issue here.³

69 Fed.Reg. 41576. they apply to existing facilities that are point sources, whose primary activity is the generation and transmission (or sale for transmission) of electricity, and whose water-intake flow is more than 50 million gallons of water per day, at least 25 percent of which is used for cooling purposes. Ibid. Over 500 facilities, accounting for approximately 53 percent of the Nation's electric-power generating capacity, fall within Phase II's ambit. See EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, p. A3–13 (Table A3–4, Feb.2004), online at http://www. epa.gov/waterscience/316b/phase2/econbenefits/final/a3.pdf. Those facilities remove on average more than 214 billion gallons of water per day, causing impingement and entrainment of over 3.4 billion aquatic organisms per year. 69 Fed.Reg. 41586.

To address those environmental impacts, the EPA set “national performance standards,” requiring Phase II facilities (with some exceptions) to reduce “impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline”; a subset of facilities must also reduce entrainment of such aquatic organisms by “60 to 90 percent from the calculation baseline.” 40 CFR § 125.94(b)(1), (2) ; see § 125.93 (defining “calculation baseline”). Those targets are based on the environmental improvements achievable through deployment of a mix of remedial technologies, 69 Fed.Reg. 41599, which the EPA determined were “commercially available and economically practicable,” id., at 41602.

In its Phase II rules, however, the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. Id., at 41601. It refused to take that step in part because of the “generally high costs” of converting existing facilities to closed-cycle operation, and because “other technologies approach the performance of this option.” Id., at 41605. Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent, id., at 41601 (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year, id., at 41605, nine times the estimated cost of compliance with the Phase II performance standards, id., at 41666. Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems “would produce 2.4 percent to 4.0...