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Analysis: Reading the meaning of silence


Parsing what Congress means when it is silent, the Supreme Court on Wednesday decided that federal environmental regulators may let more than 500 electric power plants use less-costly devices to take water for cooling out of the nation’s waterway, even if that does less than could be done to protect fish and tiny forms of acquatic life.  The decision was a significant loss for conservationists, and for states that wanted more rigorous protection of the fish, shellfish and tiny plankton at the bottom of the acquatic food chain in their rivers and streams.

Although the ruling in Entergy Corp. v. Riverkeeper (07-588) was limited to government controls on water pollution, it seemed to speak more generally in allowing federal agencies in other fields to opt for lower-cost technology even if not the best for the environment, unless Congress explicitly forbids them to do so.

Justice Antonin Scalia examined a provision of the Clean Water Act that controls industry structures for pulling plant-cooling water out of rivers and streams, and found that Congress had said nothing there about whether EPA could weigh costs against benefits and choose a lower-cost option. “It is eminently reasonable,” Scalia wrote, “to conclude that [that section’s] silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.”

If Congress’ silence meant prohibition, then federal agencies would not be able to take into account any considerations that Congress did not expressly leave to their discretion, Scalia said.

To Justice John Paul Stevens and two other dissenters, congressional silence — at least in this legislation — spoke more definitively.  In the environmental field, the dissenters argued, “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and Congress intended “to control, not delegate, when cost-benefit analysis should be used.” Thus, under the Clean Water Act, silence on Capitol Hill did not mean “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”

The dissenters argued that, when cost-benefit analysis is used in judging measures to protect the envirionment, it is routinely easier to calculate costs of the technology than it is to calculate harms to the environment, so costs tend to drive the choice. “Cost-benefit analysis often, if not always, yields a result that does not maximize environmental protection,” Stevens wrote. 

The impact on future environmental controversies of the majority’s approach in Entergy appears to be depend  on what the language of a federal law says, or on what it fails to say explicitly, and that leaves it to Congress to get what it really wants only if it speaks with clarity and specificity.  (The decision is only one about how to interpret an existing law, and thus it is open to amendment if Congress does not like the result.)  But the impact may also depend, with new leadership now in place at EPA, on whether the Obama Administration wants to use cost-benefit calculations when the result would be lessened environmental protection.


The Entergy case involved a decision by EPA to lay out, for the first time, a set of regulations to apply nationwide to all water-intake structures at new and existing power plants.  The resulting rules apply to about 550 power plants that account for about 53 percent of the nation’s electric-power generating capacity.

The power industry challenged the regulation, arguing that EPA does not have the authority to impose new requrements on existing intake structures. The Second Circuit Court upheld the EPA’s authority to do so, but ruled that the agency could not use cost-benefit analysis in applying the regulation.  The Supreme Court then agreed to hear the industry appeal, but limited its review to the agency’s authority to compare costs with benefits in judging what structures could be used under the Clean Water Act’s mandate to minimize harm to the environment.

As the case unfolded before the Court, it became a major test of the implications of calibrating environmental impact according to the costs of doing so, rather than finding the technology that would do the most to protect the environment.

Wednesday’s decision came on a 6-3 vote, at least on whether the Act allowed EPA to use cost-benefit analysis in deciding what water-intake structures must be used by utility plants when they are seeking to cool down the heat that results from generating electricity.  Justice Stephen G. Breyer went along with that view of the Act, but said that he would have sent the case back to EPA to further explain its switch in the language it used in spelling out its cost-benefit standard.

Justice Scalia’s opinion did not resolve entirely the dispute over EPA’s standards for the structures at issue.  The decision sends the case back to the Second Circuit to consider remaining issues beyond EPA’s discretion to use cost-benefit methodology.  Joining Scalia’s opinion in full were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Clarence Thomas.  Justice Breyer wrote separately. Justice Stevens’ dissenting opinion drew the support of Justices Ruth Bader Ginsburg and David H. Souter.