Riverkeeper Will Argue Clean Water Act Case Before U.S. Supreme Court

Ruling will address EPA's use of cost-benefit analysis to determine power plant upgrades

11/24/2008

For Immediate Release: November 24, 2008
Contact: Renee Cho, Riverkeeper
914-478-4501 x 239
rcho@riverkeeper.org

(Washington, D.C.) On December 2, 2008, Entergy Corp. v. Riverkeeper, Inc. will be argued in the United States Supreme Court. The case will determine whether or not the Environmental Protection Agency (EPA) is authorized to compare costs with benefits in determining the “best technology available” (BTA) for the cooling water intake structures of existing power plants. Richard Lazarus, Professor of Law and Faculty Director of the Supreme Court Institute at the Georgetown University Law Center, will argue the case on behalf of Riverkeeper.

Press Call In: On Tuesday, November 25 at 12 noon, Riverkeeper will hold a press call-in to brief reporters on the background of this case. Riverkeeper’s senior attorney on power plants, Victor Tafur; lead attorney for the Indian Point relicensing case, Phillip Musegaas; and attorney Reed Super will be available to answer questions. Call in number: 1-877-358-8255 ID number: 800 5633.

Section 316(b) of The Clean Water Act (CWA) requires power plants to employ the best technology available to protect fish and other aquatic life. In 2004, the Environmental Protection Agency (EPA) established national regulations for existing power plants as required by the CWA. (Regulations are necessary to specify how BTA should be applied for cooling water intakes; without them, the law is very difficult for permit writers to apply.)

On July 26, 2004, Riverkeeper led a national coalition of environmental groups and worked closely with a coalition of six states led by Rhode Island in a legal challenge to these regulations because they set weak standards and allowed power plants to seek variances to BTA. In 2007, the U.S. Court of Appeals for the Second Circuit struck down the regulations, and ruled that, in establishing BTA, the EPA should determine whether the cost of the technology can reasonably be borne by industry.

Several energy companies, including Entergy Corporation, owner of the Indian Point nuclear power plant in Buchanan, NY, petitioned the court to review the Second Circuit’s decision. In April 2008, The U.S. Supreme Court agreed to grant the petition with regard to a single issue: “Whether Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorizes 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.” The Supreme Court will not review the other topics decided by the Second Circuit in Riverkeeper’s favor.

Every day, power plants in the United States withdraw over 214 billion gallons from U.S. water bodies to cool their facilities, and kill billions of fish and aquatic creatures in the process. This is mostly due to the use of antiquated cooling systems, known as “once-through cooling,” which are often employed by older power plants. In contrast, closed-cycle cooling systems, which the EPA considers BTA for new plants, recirculate most of the water after dispersing heat in a cooling tower, reducing the amount of water withdrawn and the number of fish killed by over 95 percent.

“The once-through cooling intakes of Hudson River power plants, which withdraw 5 billion gallons of water each day, have had a devastating effect on the river’s ecosystem. The Clean Water Act clearly mandates the use of ‘best technology available’ without regard to cost-benefit comparisons and was intended to address precisely these types of impacts,” said Alex Matthiessen, Hudson Riverkeeper and President. “With this case, the Supreme Court has the opportunity to weigh in on this important environmental issue, as we seek to end the era of illegal fish kills once and for all. We have the law on our side and are confident justice will prevail.”

“As the 30 million Americans who go fishing and the scientists who monitor our fish populations every year know, billions of fish are being killed by outdated power plant cooling intakes. This destruction has been going on for decades and must be stopped,” said Nancy Stoner, Co-director of the Water Program, Natural Resources Defense Council, part of the environmental coalition.

“The billions of fish killed needlessly every year by power plant cooling water intakes is another in a long list of compelling reasons why this country must make a fundamental shift in our approach to power generation and our overall energy policy,” stated Scott Edwards, Legal Director of Waterkeeper Alliance, another member of the environmental coalition “It’s only when environmentally harmful industries are forced to cover the costs of the damage they do to our planet that we’ll be able to move on to more sustainable, cleaner, and less damaging technologies.”

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