Editorial -- A Supreme Court Test of Fish vs. Power Plants

Wednesday, December 3, 2008

FISH, POWER plants and the meaning of "best" took center stage yesterday at the Supreme Court in one of the most closely watched regulatory cases of the term.

Each year, millions of fish, shellfish and other creatures are killed or harmed after becoming trapped in systems that take in water from lakes, ponds and other bodies of water to cool power plants. The Clean Water Act directs the Environmental Protection Agency to identify the "best technology available for minimizing adverse environmental impact" from such water intake.

The question before the justices yesterday was whether the EPA may conduct a cost-benefit analysis and factor that in when choosing the best technology available. A panel of the U.S. Court of Appeals for the 2nd Circuit in New York said no; utility companies roared back, saying that the EPA has for decades balanced costs against benefits when setting policy and that turning a blind eye to costs could force companies to spend millions, if not billions, of dollars to save a few fish. Supreme Court precedent compels courts to defer to an agency's judgment when a statute is ambiguous. Such is the case, the industry argues, with the Clean Water Act's intake provision and its failure to address cost-benefit analysis.

But that "failure" can just as easily -- in fact, more easily -- be read as a reflection of Congress's decision to eliminate cost-benefit analysis for intake systems. Lawmakers who drafted the Clean Water Act were concerned that relying too much or too often on cost-benefit analysis would allow companies to circumvent regulation. Congress inserted cost considerations in several provisions of the law and used different language (e.g., "best practicable control technology currently available") when it wanted the agency to consider costs. 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.

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