U.S. Supreme Court Permits Cost-Benefit Analysis to Relax Regulation of Power Plants Under the Clean Water Act
The U.S. Supreme Court has approved the use of cost-benefit analysis to determine which water-intake technologies power plants must employ under the Clean Water Act (“CWA”), 33 U.S.C. Sections 1251-1387 (1977). The decision in Entergy Corp. v. Riverkeeper, Inc., delivered on April 1, 2009, significantly relaxes decades of regulatory practice and reverses a Second Circuit ruling, Riverkeeper, Inc. v. EPA, that precluded the Environmental Protection Agency (“EPA”) from comparing technology costs and environmental benefits in setting acceptable levels of environmental impact for existing power plants. See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. ___ (2009); Riverkeeper, Inc. v. EPA, 475 F. 3d 83 (2007).
Riverkeeper, Inc. originally brought suit against the EPA in response to the agency’s adoption of a two-phase regulatory scheme that applied different standards depending on whether the power plant at issue was a new or existing facility. For nearly 30 years prior to the scheme, EPA had made “best technology available” determinations, as required under Section 1326(b) of the Act, on a case-by-case basis. The agency’s recent two-phase approach opened the door to potentially relaxed environmental standards for over 500 existing power plants supplying more than half the nation’s electricity. View full article (PDF).