In Tuesday’s oral argument in Entergy v. Riverkeeper (No. 07-588, consolidated with Nos. 07-589 and 07-597), the Supreme Court considered Section 316(b) of the Clean Water Act, which provides that “[a]ny standard…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.” The question before the Court was whether Congress in Section 316(b) had explicitly removed the consideration of costs and benefits from the calculation of the “best” technology, or whether the provision is instead sufficiently ambiguous to allow the EPA to use its discretion in considering costs and benefits.

Both Maureen Mahoney, arguing on behalf of petitioner Entergy, and Deputy Solicitor General Daryl Joseffer, arguing for the EPA in in support of Entergy, attempted to portray the language of Section 316(b) as falling squarely within Chevron. Both pointed to two other “best technology” provisions in the Act that explicitly require EPA to consider costs, arguing that because those provisions both reference costs and are much more detailed than 316(b), Congress’s mere silence should not be seen as a prohibition. Both Mahoney and Joseffer also cited EPA practice over the last three decades: the agency has long rejected improvements whose costs would be “wholly disproportionate” to their benefits.

Several Justices pressed Mahoney and Joseffer to explain how a cost-benefit analysis would be conducted; Justice Souter seemed particularly concerned with how to value the natural life being protected in comparison to the expense of plant retrofits, as well as how cost-benefit analysis could be implemented without severely undermining the technology-forcing aspects of Section 316(b).

Arguing for respondents Riverkeeper et al., Richard Lazarus began by trying to counter the various hypotheticals-such as incurring millions in expenses to protect only a few fish-put forth by petitioners and amici (and described more colorfully in respondents’ brief as “proffered horribles”). He was never able to fully finish that line of argument, however, as he was tied down by a series of exchanges with Justices Alito and Scalia regarding his definitions of the words “available” and “best.” While Lazarus contended that the concept of “economic availability” encompassed the idea of cost to the industry, Justice Alito had difficulty seeing how this admission that cost concerns played any role at all managed to avoid the Chevron test.

Justice Breyer seemed to extend an olive branch to both sides of the case, sketching out a vision of 316(b) in which costs were taken into account, and even balanced against benefits, but only in a limited fashion to prevent absurd results; in short, very similar to the “wholly disproportionate” test the EPA had been using previous to this litigation. There must be, “a way of [balancing costs] that they have some discretion over, that doesn’t involve some enormously elaborate thing,” he said, “and that’s what I’m searching for.”

Posted in Entergy Corp. v. EPA, Uncategorized