Entergy Corp. v. Riverkeeper, Inc.

PETITIONER:Entergy Corp.
RESPONDENT:Riverkeeper, Inc., et al.
LOCATION: Environmental Protection Agency

DOCKET NO.: 07-588
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 556 US (2009)
GRANTED: Apr 14, 2008
ARGUED: Dec 02, 2008
DECIDED: Apr 01, 2009

Daryl Joseffer – Deputy Solicitor General, Department of Justice, argued the cause for the EPA, supporting the petitioners
Maureen E. Mahoney – argued the cause for the petitioners
Richard J. Lazarus – argued the cause for the respondents

Facts of the case

Three consolidated cases center around whether or not the EPA surpassed its federal authority by weighing the pros and cons of systems to be used at water intake cooling structures rather than simply employing the most advanced technology available on the market. The claims, brought by environmental groups and corporations, allege that the EPA’s cost/benefit analysis violated the Clean Water Act (CWA) by leading to the use of structures that were insufficient to protect aquatic organisms from being harmed or killed as required by the CWA.


Does Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorize 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?

Media for Entergy Corp. v. Riverkeeper, Inc.

Audio Transcription for Oral Argument – December 02, 2008 in Entergy Corp. v. Riverkeeper, Inc.

Audio Transcription for Opinion Announcement – April 01, 2009 in Entergy Corp. v. Riverkeeper, Inc.

John G. Roberts, Jr.:

Justice Scalia has our opinion this morning in case 07-588, Entergy Corporation versus Riverkeeper, Incorporated, and the consolidated cases.

Antonin Scalia:

These cases are here on writs of certiorari to the United States Court of Appeals for the Second Circuit.

The petitioners operate large power plants.

To cool their facilities, they employed things that are called “cooling water intake structures” which extract water from nearby waterways and thereby pose a threat to aquatic organisms.

These cooling structures are subject to regulation under the Clean Water Act which requires that they “reflect the best technology available for minimizing adverse environmental impact.”

At issue in this case are regulations promulgated pursuant to this provision so-called “Phase II” rules that govern existing power facilities which extract a certain volume of water for cooling purposes.

The Phase II rules adopted by EPA set national performance standards which mandate certain percentage reductions in impingement which is squashing of the aquatic organism and entrainment which is sucking them into the cooling system.

The EPA did not require these existing power plants to retrofit their facilities with so-called “closed-cycle cooling” that involves taking in much less water and thereby squashing and sucking in many fewer aquatic organisms.

Instead of requiring that, the agency set the national standards at a level that would permit use of technologies that in its view approximated the benefits of closed-cycle cooling at significantly lower costs.

The Phase II rules also provide for variances from these standards for facilities that can demonstrate that the costs of compliance would be “significantly greater than the benefits of complying with the applicable performance standards.”

The respondents, environmental groups in various states challenged these Phase II rules arguing in part that the EPA impermissibly relied upon cost-benefit analysis in setting the national performance standards and in providing for variances from those standards.

The Second Circuit agreed and granted the petition for review.

We granted certiorari and now reverse.

In promulgating the Phase II rules, the EPA relied on its view that the phrase “best technology available for minimizing adverse environmental impact” the standard mandated by the statute permits consideration of a technology’s costs and of the relationship between those costs and the environmental benefits produced.

Under our case law, that determination by the agency is entitled to deference if it is and will be sustained if it is a reasonable interpretation of the statute.

We conclude that it is.

The phrase “best technology” could of course refer to the technology that produces the most of some good, in this case, environmental improvement.

But it may also refer to the technology that most efficiently produces that good even if — even if it produces a lesser quantity.

Likewise, the phrase “for minimizing adverse environmental impact” does not necessarily mandate the greatest reduction possible.

The term “minimizing” admits a degree and its use suggest that the agency retains discretion to determine the extent of reduction warranted under the circumstances including consideration of the relative costs and benefits involved.

Nor does the structure of the Clean Water Act preclude the EPA’s interpretations.

The Act mandates a series of best technology standards governing the discharge of pollutants into the nation’s waterways.

Those various standards are in turn elucidated by varying lists of statutory factors.

For some of the standards, the EPA must conduct some form of cost-benefit analysis.

For others, it is instructed to consider the cost of achieving the effluent reduction.

Section 1326(b), the provision at issue here contains no such list of factors.

Respondents argue that we should infer from that silence that cost-benefit analysis is forbidden.

We decline that invitation.

First, all the other tests authorize some form of cost consideration.

If silence is preclusive, Section 13 — consideration under Section 1326(b) would be forbidden, a position rejected by respondents in the Second Circuit.

Antonin Scalia:

Secondly, Section 1326(b) is silent not only would respect the cost considerations but also with respect to all factors.

If silence is preclusive, the EPA could not consider any factors in setting rules under 1326(b) which is an obvious logical impossibility.

Ultimately, even respondents in the Second Circuit concede that some form of cost-benefit analysis is permitted.

In reviewing a prior set of rules under 1326(b), the Second Circuit founded permissible for the EPA to reject a stricter regulatory standard that would have achieved “a relatively small improvement at a very significant cost.”

And in the decision below, the Second Circuit, while rejecting cost-benefit analysis held that 1326(b) mandates only those technologies whose costs can “reasonably be borne by the industry.”

But of course whether it is reasonable to bear a particular cost depends upon the resulting benefits.

Likewise, respondents concede that the EPA need not require industry to spend billions in order to save one more aquatic organism.

This concedes the principle and there is no statutory basis for limiting the comparison of cost and benefits to situations where the benefits are de minimis rather than significantly disproportionate which is what — what is the standard that EPA used here.

We therefore conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and providing for cost-benefit variances from those standards.

We express no views regarding the remaining basis for the Second Circuit’s decision which are not at issue today.

The judgment of the Court of Appeals is reversed and the cases are remanded for further proceedings consistent with our opinion.

Justice Breyer has filed an opinion concurring in part and dissenting in part.

Justice Stevens has filed a dissenting opinion, in which Justices Souter and Ginsburg have joined.