Amicus Curiae Brief — Entergy Corp. v. Riverkeeper, Inc.

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No. 07-588, 07-525 29 and 075557 501 | > 6

Jn the Supreme Court of the Gnited States

ENTERGY CORPORATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

PSEG FossIL LLC, ET AL., PETITIONERS

V.

RIVERKEEPER, INC., ET AL.

UTILITY WATER ACT GROUP, PETITIONER

Vv.

RIVERKEEPER, INC., ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF ENVIRONMENTAL LAW PROFESSORS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

JAMES R. MAY JARED A. GOLDSTEIN*

Widener University Roger Williams University

School of Law School of Law

4601 Concord Pike Bristol, RI 02809

Wilmington, DE 19803 (401) 254-4594

(302) 477-2060

* Counsel of Record

eo en

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................ccccceseseeeseseeseeees il

INTEREST OF THE AMICI CURIAE........0...00..000..... I

SUMMARY OF ARGUMENT........... cc ceceecesceeseseseeeeees 2

ITE teintiiritincnsniisisedbinviinninestenrienniriniasnsespensasnecenen 5

I. THE COST-BENEFIT BALANCING THAT

PETITIONERS ADVOCATE IS

FUNDAMENTALLY AT ODDS WITH THE

CLEAN WATER ACTS TECHNOLOGY.

ET FF IE ccsrscosincsssbionssocisnnenecdapesonenseveece 5

A. In the Clean Water Act, Congress Adopted

Technology-Based Standards That Do Not

Depend on Proof of Environmental Harm........ 6

B. None of the Clean Water Act’s Technology-

Based Standards Allow Regulators to

Undertake the Sort of Cost-Benefit

Balancing That Petitioners Advocate............. 12

C. The Clean Water Act’s Technology-Based

Regulatory Approach Has Dramatically

Improved Water Quality Without

Producing Absurd Results .......................2:.000 18

II. SECTION 316(b) ESTABLISHES A

TECHNOLOGY-BASED STANDARD THAT

DOES NOT AUTHOW.IZE BALANCING

ENVIRONMENTAL BENEFITS AND

EF OGD GIP E OD vcictevcenssisnsenentecinscncinesesnecess 24

A. The Absence of Express Prohibition to Set

Standards Based on Cost-Benefit Analysis

Is Not Tantamount to Congressional

I eccshicisenessiaceibiiinicsinecipetainieistieniealiieedianisdeale 25

il

B. The Plain Text of Section 316(b) Does Not

Authorize Cost-Benefit Analysis .................... 26

ee clatcithtiipeiiniebsnssnaiinedibiaeaiinstapeaniebstdipenniduties 36

TABLE OF AUTHORITIES

Cases

Am. Petroleum Inst. v. EPA, 858 F.2d 261 (5th

Bs TI cdcadenieusitbinanmieni sechiileaiiidesiiaiieiamiidlibiidiaddanininionss 13

Am. Textile Mfrs. Inst., Inc. v. Donovan, 452

TT CR a aT Le or RR ET 15,18

Arkansas v. Oklahoma, 503 U.S. 91 (1992) .............. 10

Appalachian Power Co. v. EPA, 671 F.2d 801

I i crete 16

City of Arcadia v. EPA, 411 F.3d 1103 (9th Cir.

Cc a Te a DT 13

E.I du Pont de Nemours v. Train, 430 U.S. 112

Ta ae 9-10, 18

EPA v. California, 426 U.S. 200 (1976) ...................... 8

EPA v. Nat'l Crushed Stone Assn., 449 U.S. 64

RETR Ee a aE passim

Keene Corp. v. United States, 508 U.S. 200

I italic lat thas einen etecnntdinibeinleseiniiaie 15

Missouri v. Illinois, 200 U.S. 496 (1906) ..............0..... 6

National Wildlife Federation v. EPA, 286 F.3d

Sa: Se Is I I 0 ss reiecersipniinmerienienosionns 25

New York v. New Jersey, 256 U.S. 296 (1921) .......... 6

Public Citizen v. FDA, 831 F.2d 1108 (D.C. Cir.

ENS AC, RO ea eee Oe See ee Ce Ae Ce ET 24

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) ...... 19

i

Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923 (5th

a 19

Weinberger v. Romero-Barcelo, 456 U.S. 305,

RRO oe eee aame Ae Pee SRO e Ee eee en 7, 26

Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.

EG HAR EE CoE 13, 16

Whitman v. Am. Trucking Assns., Inc., 531 U.S.

LESTER EER No SNE Oe One OR POOR 28-29

Legislative Materials

1972 House Report, Legislative History of the

Water Pollution Control Act Amendments of

1972, 117 Cong. Rec. 38,825 (Nov. 2, 1971),

reprinted in 2 Leg. Hist. at 1254........... 9, 11-12, 19

Clean Air Act of 1970, Pub. L. No. 91-604, 84

Stat. 1676, codified as amended at 42 U.S.C.

SER ERS Eee 10

Resource Conservation and Recovery Act, Pub.

L. No. 94-580, 90 Stat. 2795, codified as

amended at 42 U.S.C. §§ 6901-6992K ............ 10-11

Water Pollution Control Act of 1948 § 2(d)(1) ............ 6

Water Quality Act of 1965, Pub. L. No. 89-234, §

il coniabanmmbasaiumaaiila 6

rE, co enhppgeerinmenee alii 9

ECan ere emcee Mae er nneoe 12, 35-36

Ae 14, 16, 34

CL ETE RE

ET ae ne mee ara 36

i a 36

i sa ndaenainienaeesenes 10

EE a ne a Eee 10

AD U.S.C. § TEOB(ANDZ) ...........cccecceccececceccesseccocecceseevers 10

iv

Administrative Materials

69 Fed. Reg 41576-01 (Friday, July 9, 2004) ............ 33

EPA, National Water Quality Inventory: Report

to Congress, 2002 Reporting Cycle: National

Studies of Water Quality (2007) ........................2.. 23

EPA, Water Quality Conditions in the United

States: A Profile from the 2000 National

Water Quality Inventory 1 (2001) ........................ 22

EPA, A Retrospective Assessment of the Costs of

the Clean Water Act: 1972 to 1997 (2000) ........... 23

EPA, A Benefits Assessment of Water Pollution

Control Programs Since 1972: Part 1, The

Benefits of Point Source Controls for

Conventional Pollutants in Rivers and

RE cs a Den: 23

EPA, National Water Quality Inventory: 1994

Report to Congress.” (1995).....................20..000 22-23

Books and Book Chapters

Rodgers, Environmental Law: Air and Water

I I tala lintel inelealdieaieainadnabteene 6, 12, 17

Percival et al., Environmental Regulation, Law,

Science, and Policy, (5t* Ed., Aspen 2006) ........... 19

Adler, Landman and Cameron, The Clean

Water Act 20 Years Later, Island Press

REELS S18 CLES ee ey Cee 23

Articles

Cass R. Sunstein, Cost-Benefit Default

Principles, 99 Mich. L. Rev. 1651 (2001) ............. 30

Vv

Frank J. Barry, The Evolution of the

Enforcement Provisions of the Federal Water

Pollution Control Act, 68 Mich. L. Rev. 1103

SEE decicnpstusidecsnminpnensniaposenininbteninadianencnectsscndien -

James R. May, The Rise and Repose of

Assimilation-Based Water Quality, Part I:

TMDL Litigation, 34 Envt’] L. Rep. 10247

RO NE Se ee ne

James R. May and Maya van Rossum, The

Quick and the Dead: Fish Entrainment,

Entrapment, and the Implementation and

Application of Section 316(b) of the Clean

Water Act, 20 Vt. L. Rev. 373 (1995) ..............

Oliver A. Houck, The Regulation of Toxic

Pollutants Under the Clean Water Act, 21

Envtl. L. Rep. 10,528 (1991) ........... cc ceeesseseeeeeee

Oliver A. Houck, Of Bats, Birds and B-A-T: The

Convergent Evolution of Environmental

Law, 63 Miss. L.J. 403 (1994) 00... cece eee

Wendy E. Wagner, The Triumph of Technology-

Based Standards, 2000 U. II. L. Rev. 83

EPA cxteiensstssan sithsinanncepeninieniiigheatiuaimmeniananinaiiontines

William L. Andreen, Water Quality Today—Has

the Clean Water Act Been a Success?, 55

Ala. L. Rev. 537, 542 (2004) .................ssssecceseees

“*-* =

INTERESTS OF THE AMICI CURIAE!

Amici are professors and scholars who teach,

research and write on environmental, natural

resources, and energy law. Amici have an interest in

seeing that the Court is informed on the appropriate

role of costs in the implementation of § 316(b) of the

Federal Water Pollution Control Act, 33 U.S.C. §

1326(b), commonly referred to as the Clean Water

Act.

Amici are William L. Andreen, the Edgar L.

Clarkson Professor of Law at the University of

Alabama School of Law; William Wade Buzbee,

Professor of Law at Emory Law School and Director

of the Emory Environmental and Natural Resources

Law Program; Ann Carlson, Professor of Law at

UCLA Schoo! of Law and the Co-Director of the

Frank G. Wells Environmental Law Clinic; Kim

Diana Connolly, Associate Professor of Law,

University of South Carolina School of Law; Daniel

Farber, Sho Sato Professor of Law, Director,

California Center for Environmental Law & Policy

(CCELP) Co-Director, UCB Center for Catastrophic

Risk Management, University of California, Berkeley;

Robert L. Glicksman, Robert W. Wagstaff Professor of

Law, University of Kansas; Oliver A. Houck,

1 The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part,

and no counsel] or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amici, their institutions, or their

counsel made a monetary contribution to its preparation or

submission.

2

Professor of Law, Tulane University Law School;

Jeffrey Miller, Vice Dean for Academic Affairs and

Professor of Law, Pace University School of Law;

Thomas O. McGarity, Joe R. and Teresa Lozano Long

Endowed Chair in Administrative Law, the

University of Texas School of Law; Robert V. Percival,

Robert F. Stanton Professor of Law, Director,

Environmental Law Program, University of

Maryland School of Law; Sidney Shapiro, Associate

Dean for Research and Development and University

Distinguished Chair in Law, Wake Forest School of

Law; Dan Tariock, Distinguished Professor of Law

and Director of the Program in Environmental and

Energy Law, Chicago-Kent College of Law; and

Wendy E. Wagner, Joe A. Worsham Centennial

Professor, the University of Texas School of Law.

Amici file this brief solely as individuals and not

on behalf of the institutions with which they are

affihated.

SUMMARY OF ARGUMENT

In the Clean Water Act, Congress adopted as a

national goal the restoration and maintenance of “the

chemical, physical, and biological integrity of the

Nation’s waters,” 33 U.S.C. § 1251, and chose

technology-based standards as the central regulatory

tools to achieve that goal. The technology-based

approach marked a sharp break with the water

quality-based approach that had governed until

1972, which predicated pollution control on

assessments of how much harm pollution causes

receiving waters and determinations of how much

pollution it was reasonable to tolerate. Congress

found this pre-1972 approach to be “inadequate in

3

every vital respect.” While the water quality-based

approach required complex scientific evaluations of

the effects of pollution on receiving water and

delicate policy determinations of how much pollution

was tolerable in each water body, the technology-

based approach adopted in the Clean Water Act is

much simpler, requiring EPA to focus on the capacity

of technology to reduce water pollution rather than

on the harms caused by pollution or on making the

policy determination of how much pollution it is

economically reasonable to tolerate.

Although Section 316(b) of the Clean Water Act

addresses cooling water intake rather than pollution

discharges, it is otherwise typical of the Clean Water

Act’s technology-based standards. It directs EPA to

set performance standards for cooling water intake

structures that reflect the “best technology available

for minimizing adverse environmental impact.”

EPA’s task in applying that section involves

identifying the “adverse environmental impacts”

associated with cooling water intake; identifying the

“available” cooling water intake technologies; and

determining which of those technologies is “best. . .

for minimizing” the identified impacts. By its plain

terms, Section 316(b) requires EPA to set

performance standards based on the capacity of

available technology to minimize impacts like

entrainment and impingement.

EPA’s task in setting the standards required by

Section 316(B) is little different than its task in

setting technology-based standards for eliminating

pollution discharges. Just as EPA must determine

which technologies eliminate the most pollution, EPA

must determine which technology minimizes impacts

4

like entrainment and impingement. In each case,

Congress has directed EPA to focus on technological

capacity rather than assessing how much

environmental harm it is reasonable to tolerate.

Petitioners, however, mistakenly contend that

EPA should set standards under Section 316(b) by

attempting to balance the environmental benefits

against the costs of doing so, and it should undertake

this cost-benefit balancing on both a national and a

site-specific basis. While this may or may not be a

sensible policy suggestion, Congress adopted a very

different policy when it enacted Section 316(b) of the

Clean Water Act. Congress, not the EPA, has already

weighed the costs and benefits and has concluded

that it is worth the costs to have intake structures

reflect the best available technology for minimizing

adverse impacts. Although Petitioners frame their

arguments in terms of statutory construction, they

are actually mounting a direct attack on the

technology-based regulatory approach Congress

chose in the Clean Water Act. They effectively ask

this Court to turn the clock back to 1971. Under

petitioners’ view, EPA can ignore the available

technology that most reduces the adverse impacts

associated with water intake, not because such

technology is unaffordable, but because EPA has

nearly unlimited discretion to decide that the

benefits to water quality do not justify the costs. Yet

this ambient-based approach reflects a policy that

Congress repudiated in adopting Section 316(b).

Petitioners mistakenly argue that regulating

cooling water intake structures without balancing

costs and benefits would be irrational and would lead

to absurd results. The history of water pollution

)

regulation before 1972 demonstrates that Congress

wisely chose to adopt standards based on

technological capacity rather than balancing costs

and benefits. Experience under the Clean Water Act

vindicates Congress’s choice: the technology-based

standards adopted under the Clean Water Act have

produced significant environmental benefits without

causing economic disruption or the absurd results

Petitioners predict.

ARGUMENT

I. THE COST-BENEFIT BALANCING THAT

PETITIONERS ADVOCATE IS

FUNDAMENTALLY AT ODDS WITH THE

CLEAN WATER ACT'S TECHNOLOGY-

BASED APPROACH

Petitioners advocate a cost-benefit balancing

approach to Section 316(b), under which EPA makes

detailed assessments of the environmental harms

caused by cooling water intake technologies and then

compares the monetized benefits of avoiding thosc

harms against the costs of the technologies. Whatever

the merits of that regulatory approach, it is

fundamentally inconsistent with the Clean Water

Act. In enacting the Clean Water Act, Congress made

a sharp break with previous regulatory efforts that

predicated regulatory controls on a determination

that industrial activities cause more harm to water

quality than regulators considered reasonable.

Congress concluded that assessment of

environmental harm was a scientific morass that

impeded effective regulation and that water quality

was gravely threatened by giving regulators power to

determine how much environmental harm is

6

reasonable. Cost-benefit balancing of the _ sort

advocated by petitioners, in contrast, would return

regulation to the pre-Clean Water Act era.

A. In the Clean Water Act, Congress Adopted

Technology-Based Standards That Do Not

Depend on Proof of Environmental Harm

The most fundamental change wrought by the

Clean Water Act was Congress’s decision to dispense

with proof of environmental harm as a predicate to

curtailing activities that affect our nation’s waters. In

common law nuisance actions, water pollution could

only be enjoined if the plaintiffs made the very

difficult showing that pollution caused demonstrable

harms to specific water bodies.’ Congress continued

this common law approach when it first enacted

federal water pollution law in the Water Pollution

Control Act of 1948, Pub. L. No. 80-845. Under that

Act and several subsequent ones, the federal and

state governments sought to keep water pollution to

acceptable levels by implementing site-specific water

quality standards. These standards varied depending

on each state’s designated uses for particular water

bodies—lakes and rivers designated for industrial use

were governed by lower water quality standards than

waters designated for fishing, swimming, and

recreation, for example.‘

Like cost-benefit balancing, the water quality

approach was based on the assumption that pollution

3 See, e.g., New York v. New Jersey, 256 U.S. 296, 311-12

(1921); Missouri v. Ilhnois, 200 U.S. 496, 517, 526 (1906).

4 See Water Quality Act of 1965, Pub. L. No. 89-234, § 5(a),

79 Stat. 903, 908.

7

was acceptable “up to a point of unreasonableness.”

Rodgers, Environmental Law: Air and Water § 4.1 at

13 (2d ed. 1986). Under the water quality-based

approach, regulatory controls could be imposed only

based on proof that particular pollution discharges

caused demonstrable environmental harms.5

Regulators were required to assess the effects of a

myriad of industrial pollutants on human health, fish,

shellfish, and other aquatic organisms; to determine,

based on the assessment of these effects, the

acceptable concentrations of each pollutant,

considering various uses of water bodies; and then

assess for each industrial discharger whether its

discharges contributed to pollution levels above the

acceptable concentrations. See Houck, supra note 4, at

10,528. The water quality-based approach proved

unworkable. Regulators could not determine with

precision what pollutant thresholds were safe for

human health and for aquatic life, or how to

implement them. Water quality-based programs

produced endless rounds of finger-pointing and little

cleanup.®

When Congress enacted the Clean Water Act in

1972, it concluded that the water quality-based

approach to pollution control had been a dismal

5 See Water Pollution Control Act of 1948 § 2(d)(1); Frank

J. Barry, The Evolution of the Enforcement Provisions of the

Federal Water Pollution Control Act, 68 Mich. L. Rev. 1103,

1105 (1970); Oliver A. Houck, The Regulation of Toxic

Pollutants Under the Clean Water Act, 21 Envtl. L. Rep.

10,528 (1991).

6 See Houck, supra note 4.

8

failure, indeed “inadequate in every vital aspect.”’ As

this Court has explained, the failure “stemmed from

the character of the standards themselves, which

focused on the tolerable effects rather than the

preventable causes of water pollution.” EPA v.

California, 426 U.S. 200, 202 (1976). The process for

controlling pollution was far too cumbersome because

it depended on evaluating whether pollution

discharges caused environmental harms, an

evaluation that was fraught with — scientific

uncertainties. See id. at 204 (describing the

difficulties of “workling] backward from = an

overpolluted body of water io determine which point

sources are responsible and which must be abated”).

As Congress concluded, assessments of environmental

harm were plagued with insolvable scientific

uncertainties:

We have seen a great deal of evidence

indicating that this water quality standards

system of regulation assumes more knowledge

about our complex ecosystem than we actually

have. ... [T]he history of our water pollution

control program suggests that State and

Federal governments will continue to founder

See Weinberger v. Romero-Barcelo, 456 U.S. 305, 316

(1982) (‘Congress passed the 1972 Amendments because it

recognized that ‘the national effort to abate and control water

pollution has been inadequate in every vital aspect.”)

(quoting Sen. Comm. Rpt.,. S. Rep. No. 92-414, p.7 (1971),

reprinted in U.S. Code Cong. & Admin. News 3674); EPA vu.

Cal., 426 U.S. at 202 (declaring that the federal “program

based on water quality standards. . . proved ineffective”).

9

on the staggering complexity of this control

system.®

The complexity of the regulatory task allowed

polluters to exploit the scientific uncertainties to

delay implementation of environmentally sound

controls.?

In 1972 Congress sought to avoid saddling

regulators with the impossible task and “staggering

complexity” of assessing the environmental] harms

caused by industrial activities and determinations of

the tolerable amounts of environmental harm,

embarking instead on a novel technology-based

approach. The Act replaced the federal goal of

reducing water pollution to acceptable levels with “the

national goal that the discharge of pollutants into the

navigable waters be eliminated.” 33 U.S.C. § 1251(a);

see also EPA v. Nat’l Crushed Stone Assn., 449 U.S.

64, 69 (1980). To achieve the goal, Congress turned to

the causes of water pollution and away from their

effects, directing that EPA establish technology-based

effluent limitations. These standards seek to

eliminate all discharges if such elimination is

“technologically and economically achievable.” E.1l. du

Pont de Nemours v. Train, 430 U.S 126 (1976).'°

® 1972 House Report, Legislative History of the Water

Pollution Control Act Amendments of 1972, at 865. See also

1972 Leg. Hist. at 1304 (Sen. Cooper).

$ See 1972 Leg. Hist. at 209 (statement of Sen. Tunney).

10 Water quality standards remain operable under the

Clean Water Act as a backup when uniform technology-based

standards are insufficient to meet local water quality

standards. See 33 U.S.C. § 1313: James R. May, The Rise and

10

The technology-based approach imposes

increasingly stringent effluent limitations geared to

technological capacity. See Train, 430 U.S. at 115 n.3

(“[A] discharger’s performance is now measured

against strict technology-based effluent limitations. .

to which it must conform, rather than against

limitations derived from water quality standards to

which it and other polluters must collectively

conform.”). Effluent limitations adopted in the Clean

Water Act do not require any assessments of the

environmental harms’ caused _ by _ pollution

discharges.!! Congress simply assumed that all water

pollution is harmful and should be eliminated. The

Clean Water Act therefore restricts’ pollution

discharges based on the capacity of technology to do

so and without any need for proof that discharges

cause any environmental harm.?2

Repose of Assimilation-Based Water Quality, Part I: TMDL

Litigation, 34 Enw*” L. Rep. 10247 (Env. L. Inst. 2004).

11 See Train, 430 U.S. at 115 n.3; Arkansas v. Oklahoma,

503 U.S. 91, 101 (1992).

12

Congress employed a similar technology-based regulatory

approach in the other major pollution control statutes,

eschewing any requirement that proof of environmental

harm be shown before pollution control measures were

adopted. For instance, in the Clean Air Act of 1970, Pub. L.

No. 91-604, 84 Stat. 1676, codified as amended at 42 U.S.C. §

7401-7671g, Congress’ established technology based

standards on “major emitting facilities,” (“best available

control technology), 42 U.S.C. § 7449(3), “major stationary

sources,” (“lowest achievable emission rate”), 42 U.S.C. §

7501(3) and 7503(a)(2); and for “major sources” of hazardous

emissions § 7412(d)(2) (“maximum degree of reduction ...

achievable”). See also Resource Conservation and Recovery

Act, Pub. L. No. 94-580, 90 Stat. 2795 (codified as amended

11

Rather than continue to predicate the protection

of waters on what Senator Muskie described as the

impossible “search for a precise link between

pollution and water quality,” the Act sets standards

based on “the best control technology.” For existing

sources of water pollution, the first phase standard

required that, by July 1977, polluters’ meet

performance standards based on the “best practicable

contro] technology currently available” (BPT). 33

U.S.C. 1311(b)(1)(A), see Pet. App. 97a. The second

step was to require these dischargers to meet

stringent performance standards for conventional

pollutants based on “best conventional pollution

control technology” (BCT), and for toxic and

nonconventional pollutants based on the “best

available technology economically achievable” (BAT).

33 U.S.C. § 1311(b)(2)(A), (E), see Pet. App. 97a.

Rodgers, 2 Env. Law: Air and Water § 4.28 at 411.

New sources were to be required to use the “best

available demonstrated control technology, processes,

operating methods, or other alternatives” (BADT). 33

U.S.C. § 1311(b)(1)(B), see Pet. App. 97a.

Because the promulgation of technology-based

standards does not involve’ assessments’ of

environmental harm, they are far easier to set and

enforce, and much more efficient to administer, than

other regulatory methods that aim to establish a link

between pollution discharges and harm. See Wendy

E. Wagner, The Triumph of Technology-Based

Standards, 2000 U. Ill. L. Rev. 83, 94-107 (2000).

at 42 U.S.C. §§ 6901-6992K) (requiring EPA to set

technology-based standards for facilities that dispose

hazardous wastes).

12

B. None of the Clean Water Act’s Technology-

Based Standards Allow Regulators to

Undertake the Sort of Cost-Benefit

Balancing That Petitioners Advocate

The enormously complex scientific and regulatory

undertaking petitioners suggest for Section 316(b)

would be anomalous within the context of the Clean

Water Act because it would focus regulatory attention

less on evaluation of technological capacity than on

when it is reasonable to allow environmental harms.

This is precisely the analysis Congress escnewed in

enacting the Clean Water Act. As the D.C. Circuit has

explained, the Clean Water Act does not embody the

“optimal pollution theory” that “that there is a level or

type of pollution that, while technologically capable of

being controlled, is uneconomic to treat because the

benefit from treatment is small and the cost of

treatment is large.”!4 Such a theory relies precisely on

the premise rejected by Congress that regulators have

“adequate information about the effects of pollution to

set an optimal test, and adequate political and

administrative flexibility to keep polluters at that

level.”15

14 Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1041 n.41

(D.C. Cir. 1978).

15 Jd.; see also City of Arcadia v. EPA, 411 F.3d 1103, 1105

(9th Cir. 2005) (“Technology-based regulations reduce levels

of pollution by requiring a discharger to make equipment or

process changes, without reference to the effect on the

receiving water.”); Am. Petroleum Inst. v. EPA, 858 F.2d 261,

265 (5th Cir. 1988) (“[T]he impact of a particular discharge

upon the receiving water is not an issue to be considered in

setting technology-based limitations.”)

13

Petitioners attempt to paper over the anomaly

that the technology-based standard in Section 316(b)

depend both on site-specific assessments of water

quality and determinations of how much

environmental harm is reasonable by arguing that all

of the Clean Water Act’s technology-based standards

actually allow for the sort of broad cost-benefit

balancing they advocate for Section 316(b). Entergy

Br. 38-42; UWAG Br. 35-37. Petitioners are wrong.

None of the Clean Water Act’s technology-based

standards involve the sort of cost-benefit balancing

they read into Section 316(b). As discussed above,

Congress deliberately chose not to hold the protection

of the nation’s waters hostage to the resolution of

insolvable scientific conundrums or determinations of

when environmental harms are reasonable.

Only two of the Clean Water Act’s technology-

based standards—“best practicable control technology

currently available” (BPT) and “best conventional

pollutant control technology” (BCT), see 33 U.S.C. §

1314(b)(1)(B),(b)(4)(B)—«all for even limited

consideration of the relationship between costs and

benefits, and those sections do not involve anything

like the broad cost-benefit balancing petitioners read

into Section 316(b).'© The limited cost-benefit analysis

16 Even if petitioners were right that the BPT an BCT

provisions authorize broad cost-benefit balancing, it would

undermine rather than support their position because the

express inclusion of language mandating cost-benefit

comparisons in applying BPT and BCT, and the absence of

such language in Section 316(b), can only be read to mean

that Congress did not intend that standards under Section

316(b) would be based on cost-benefits comparisons. See

Keene Corp. v. United States, 508 U.S. 200, 208 (1993)

14

set forth in BPT does not involve any assessment of

environmental harms or a determination of when it is

economically reasonable to accept such harms.

Instead, EPA must “consider” “the total cost of

application of technology in relation to the effluent

reduction benefits to be achieved from such

application.” 33 U.S.C. § 1314(b)(1)(B). The courts

have uniformly recognized that “effluent reduction

benefits” refers simply to how much pollution a

technology is capable of reducing and does not involve

any considerations of water quality effects. As the

D.C. Circuit succinctly stated, “Effluent reduction

occurs whenever less effluent is discharged.”!7 This

reflects Congress’s policy choice of directing EPA to

focus on the causes of pollution, not the effects.!®

What EPA does not do in setting performance

standards using BPT and BCT, and what EPA was

not authorized to do, is to attempt to assess the

environmental harms that are caused by the

discharge of pollutants and to determine whether the

(“When Congress includes partic#ar language in one section

of a statute but omits it in anothe® section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”).

17 Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1044 n.49

(D.C. Cir. 1978); see also Appalachian Power Co. v. EPA, 671

F.2d 801, 809 n.3 (4th Cir. 1982).

18 The same is true of Congress's directions for BCT, which

instruct EPA to consider “the reasonableness of the

relationship between the costs of attaining a reduction in

effluents and the effluent reduction benefits derived.” 33

U.S.C. § 1314(b)(4)(B). As with BPT, the “benefits” side of the

comparison used in setting BCT is the amount of pollution

that can be reduced, not benefits to water quality.

15

environmental benefits of preventing those harms are

worth the costs that would be imposed on polluters.

Congress has already established the national goal of

eliminating all water pollution, and EPA could not

properly conclude that advancing toward that goal is

not worth the costs. Accordingly, even when Congress

expressly authorized consideration of the relationship

between costs and benefits, Congress did not

authorize EPA to do what petitioners argue EPA

should do in setting standards under Section 316(b):

assess whether a dollar spent on technology saves a

dollar’s worth of fish.!9

The Clean Water Act’s other technology-based

standards provide even less support for the broad-

ranging cost-benefit balancing petitioners advocate

for Section 316(b). In setting effluent limitations

based on the “best available technology economically

achievable,” or BAT, EPA is not directed to compare

compliance costs with environmental benefits at all.

Instead, Congress directed that effluent limitations

under BAT “shall require the elimination of

discharges of all pollutants” if “such elimination is

technologically and economically achievable.” 33

U.S.C. § 1311(b)(2)(A). By its terms, BAT mandates

the maximum pollution’ reduction’ that is

technologically and economically achievable.2° In

19 See Rodgers, Environmental Law: Air and Water 432 (2d

ed. 1986) (explaining that “cost-sensitive” standards such as

BPT or BAT are far different than standards justified by

formal, monetized cost-benefit analyses, where “every dollar

spent on technology must return at least a dollar in enhanced

water quality”).

29 See National Crushed Stone Ass'n, 449 U.S. at 74 (BAT

“represents a commitment of the maximum _ resources

16

mandating BAT, Congress already undertook the

relevant balancing when it declared the national goal

of eliminating water pollution. Congress did not

conclude that pollution should be limited up to the

point when benefits outweigh costs; instead, in

mandating BAT, Congress ordered that pollution

should be eliminated to the maximum extent

technologically and economically possible.?!

In any event, this Court has already recognized

that the BAT provision does not authorize cost-

benefit balancing.?2 That conclusion, based on the

plain text, structure, and goals of the Clean Water

Act, is also fully supported by its legislative history.

As Senator Muskie, the chief Senate sponsor of the

Clean Water Act explained, “In making the

determination of ‘best available’ for a category or

economically possible to the ultimate goal of eliminating all

polluting discharges.”).

21 Petitioners’ claim that having EPA consider “such other

factors as [it] deems appropriate” authorizes cost-benefit

analysis for BAT is incorrect. Entergy Br. 9, 40. The word

“such” is to be interpreted in accordance with the words it

modifies, none of which suggest Congress has authorized

EPA to engage in a cost-benefit analysis in setting BAT. See

Environment America Br. Part I.

22 See EPA v. National Crushed Stone Assn., 449 U.S. at 71

(“Similar directions are given the Administrator for

determining effluent reductions attainable from the BAT

except that in assessing BAT total cost is no longer to be

considered in comparison to effluent reduction benefits.”);

Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 510

n.30 (1981) (stating that, in contrast to the BPT

determination, in making a BAT determination “the

Administrator is directed to consider total cost, but not in

comparison with effluent reduction benefits.”).

17

class, the Administrator is expected to apply the

same principles’ involved in making’ the

determination of ‘best practicable’... except as to cost-

benefit analysis.”23 Moreover, EPA’s longstanding

position and practice has been that BAT

determinations do not’ involve cost-benefit

balancing.?4

23 Legislative History of the Water Pollution Control Act

Amendments of 1972, 93rd Cong., lst Sess., 170 (Comm.

Print 1973) (emphasis added). Petitioners’ attempts to

counter Senator Muskie’s remarks by quoting those of

Representative Clausen ring hollow. Entergy Br. at 35.

Representative Clausen’s statement that Section 316(b)

should be read as to allow BTA at an “economically

practicable cost” is not inconsistent with Muskie’s position

that the “linguistically similar” BAT does not require a “cost-

benefit analysis.” The lower court’s “cost feasibility” approach

seems in concert with Representative Clausen’s view of the

role of costs in construing Section 316(b). To the extent the

comments appear to be inconsistent, the view of Senator

Muskie—a principal Senate sponsor of the Clean Water

Act—have long been read as authoritative. See, e.g., Train,

430 U.S. at 129; National Crushed Stone Assn., 449 U.S. at

71 n.10.

24 In the last thirty-five years, although EPA has

established hundreds of effluent limitations using BAT, see

http://www.epa.gov/waterscience/guide/industry.html, EPA

has not set BAT performance standards based on cost-benefit

analysis and has repeatedly resisted demands by industry to

do so. See, e.g., Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923,

936 (Sth Cir. 1998) (agreeing with EPA that it could set BAT

without undertaking cost-benefit analysis); Rybachek v. EPA,

904 F.2d 1276, 1290-91 (9th Cir. 1990) (same). To be sure,

EPA has complied with Executive Order 12,291 (February

17, 1981) and its successors, which require agencies to

undertake cost-benefit analysis and submit them to the

18

Thus, contrary to petitioners’ suggestions, the

Clean Water Act's’ technology-based standards

authorize neither assessment of environmental

harms nor comparison of the benefits of avoiding

those harms against the costs of doing so. To

authorize EPA to conduct such wide-ranging cost-

benefit balancing under Section 316(b) would be

contrary to the technology-based regulatory approach

adopted in the Clean Water Act.

C. The Clean Water Act’s Technology-

Based Regulatory Approach Has

Dramatically Improved Water Quality

Without Producing Absurd Results

Petitioners and their amici warn gravely that

absurd results are sure to follow if EPA sets

standards for intake structures without balancing

costs and benefits. EPA will have no choice,

petitioners claim, but to require industry to adopt

cripplingly expensive technology with little or no

environmental benefits. See, e.g., Entergy Br. at 50-

51; API Br. at 4. If respondents prevail, petitioners

warn, EPA would require industry to incur “massive

technology costs” in a misguided attempt to save

every fish. Entergy Br. at 50. Indeed, EPA would be

compelled to tell a powerplant operating on the Great

Salt Lake to spend untold millions of dollars to

protect nonexistent fish. Entergy Br. at 50.

Office of Management and Budget before issuing significant

regulations, but those executive orders do not (and could not)

change the substance of the statutory standards set by

Congress.

19

The zeal of petitioners and their amici for cost-

benefit analysis knows no bounds, as they claim that

virtually every known calamity will occur if EPA

determines the “best technology available” without

balancing compliance costs against environmental

benefits. Petitioners and their amici apparently are

not joking when they claim that the failure to weigh

costs and benefits under Section 316(b) will cause

“massive impacts” on the American economy,” API

Br. 19; exacerbate climate change, NEI Br. 3-6, 22;

cause “substantial uncertainty under’ every

regulatory statute,” API 23; “destroy the ability of

regulatory agencies to regulate,” API 29; cripple the

nation’s energy supply by shutting down untold

baseload fossil fuel fired and nuclear power plants,

Entergy Br. 3, NEI Br. 19, and oil refineries and

platforms, API Br. 17; cause national blackouts and

brownouts, NEI Bt. 20, CCEEB Br. 12-14; have a

“very negative impact on the reliability of the

electrical supply system.” UWAG Br. 11; require 20

new coal-fired power plants to compensate for the

“energy penalty” of compliance, UWAG Br. 20-21,

NEI Br. 16, increase air pollution dramatically,

UWAG Br. 28; harm protected species including the

Florida Manatee, UWAG Br. 55-56; decrease national

security, API Br. 6, and undermine “fundamental

principles of cooperative federalism,” State’s Br. on

Behalf of Petitioners 3-7, all in furtherance of the

lower court’s zeal to impose a “one size fits all”

stratagem, td. at 2, to save “every possible fish.”

Entergy Br. 36, 49.

20

Industry has long hurled _ similarly’ dire

predictions of doom at technology based standards.?5

Yet such dire consequences have not occurred in

thirty-six years of experience under the Clean Water

Act. Implementing BPT, BCT, BAT, and BADT, EPA

has issued hundreds of effluent hmitations under the

Clean Water Act that were based on the capacity of

technology to reduce pollution discharges, without

balancing compliance costs and environmental

benefits.26 These standards regulate discharges by

every major industrial sector. Petitioners cannot

point to any example, however, where the failure to

conduct broad-ranging cost-benefit balancing in

setting technology-based standards has led to absurd

results. Indeed, while industry has brought dozens of

suits to challenge effluent limitations set by EPA, in

no case has a court ruled that the absence of cost-

benefit balancing was irrational or led to absurd

results.

On the contrary, implementation of the Clean

Water Act’s technology-based effluent limitations has

dramatically reduced water pollution and improved

water quality across the nation. When the Clean

Water Act was enacted, only about one-third of

surface waters met water quality goals. By 2000, two-

thirds of waters met their goals.?2? The Clean Water

25 See e.g., Percival et al.. ENVIRONMENTAL. REGULATION,

LAW, SCIENCE, AND POLICY, 564-568 (tailpipe emission

standards) (5'» Ed., Aspen 2006).

26, See http://www.epa.gov/waterscience/guide/industry.html

(listing effluent guidelines by industrial category).

27 See EPA, Water Quality Conditions in the United States:

A Profile from the 2000 Nationa] Water Quality Inventory |!

21

Act’s successes are directly related to the

promulgation of technology-based standards. Within

three years after the promulgation of BAT standards,

industrial discharges of toxins into the nation’s

waters dropped from 412 to 197 million pounds per

year.28 To be sure, these technology-based effluent

limitations have imposed considerable costs on

industry, as Congress anticipated. EPA has

estimated that the Clean Water Act has required

regulated industries to increase their pollution

control costs by $3 billion to $5 billion per year.?9 No

evidence suggests, however, that these costs have

been crippling for any sector. If anything, the

opposite is true. Technology based standards have

helped to support the national economy and made the

nation more competitive. For example, EPA has

concluded that the annual monetized benefits

resulting from these water pollution efforts is $11

billion, far in excess of the costs.3° Accordingly, even

(2001), http://www.epa.gov/305b/2000report/factsheet.pdf;

EPA, National Water Quality Inventory: Report to Congress,

2002 Reporting Cycle: National Studies of Water Quality

(2007).

28 EPA, National Water Quality Inventory: 1994 Report to

Congress.” (1995); Adler, Landman and Cameron, The Clean

Water Act 20 Years Later, Island Press (1993).

29 See EPA, A Retrospective Assessment of the Costs of the

Clean Water Act: 1972 to 1997 (2000) at 7-3, availabie at

http://www.epa.gov/waterscience/economics/costs. pdf.

30 See EPA, A Benefits Assessment of Water Pollution

Control Programs Since 1972: Part 1, The Benefits of Point

Source Controls for Conventional Pollutants in Rivers and

Streams (2000) at Viil, available at http://

www.epa.gov/waterscience/economics/assessment.pdf.

22

without the use of broad cost-benefit balancing, the

benefits from effluent limitations far exceeds the

costs. At the same time, there is no credible evidence

that the costs of Clean Water Act compliance have

adversely affected either the American economy or

the nation’s competitiveness.*!

As with the other technology based standards,

EPA has ample authority under the terms of Section

316(b) to avoid the absurdities petitioners predict.

For instance, petitioners and their amici repeatedly

and erroneously argue that, in the absence of cost-

benefit balancing, industry would be required to

spend enormous amounts of money to save even one

fish. See, e.g., Entergy Br. 36. That is plainly untrue.

Section 316(b) gives EPA discretion to conclude that

the loss of one fish is de minimis and that its survival

is not necessary for “minimizing adverse

environmental impact.”82. By the same _ token,

31 See William L. Andreen, Water Quality Today—Has the

Clean Water Act Been a Success?, 55 Ala. L. Rev. 537, 542

(2004) (reviewing studies).

32 The de minimis doctrine spares agency resources for

more important matters. Public Citizen v. FDA, 831 F.2d

1108, 1112 (D.C. Cir. 1987). Congress has much bigger fish to

fry than respondents’ “one fish.” EPA estimates that but for

intake structures, 3.4 billion more fish in the U.S. would

survive for at least one year, roughly the age of fecundity and

commercial viability for many species. See Pet. App. 122a,

168a-174a. Proper application of Section 316(b) will save

billions of fish, every year, and hundreds of billions of fish

over the lifetime of a typical powerplant. The far-fetched

hypothetical that EPA would concern itself over saving one

fish is belied by the massive environmental reality actually

at issue.

23

petitioners are wrong to assert that, in the absence of

cost-benefit analysis, industry will be required to

employ costly control technology even when they are

operating in water bodies that have little or no

aquatic life. Technology-based standards do not

require that industry adopt particular forms of

technology but instead are performance standards

based on the available technology. See National

Wildlife Federation v. EPA, 286 F.3d 554, 558 (D.C.

Cir. 2002). A facility that may meet the performance

standard because of the nature of the water body in

which it operates thus would not need to adopt any

new controls.

If EPA were to adopt regulations implementing

Section 316(b) that resulted in any of the absurdities

petitioners predict, petitioners would of course be free

to challenge the standard as arbitrary, capricious,

and contrary to law under the Administrative

Procedure Act. The remote and entirely theoretical

possibility that EPA may someday adopt irrational

regulations implementing Section 316(b), however,

provides no basis to construe the provision contrary

to its plain text, which requires EPA to set standards

based on the best technology available for minimizing

adverse environmental impacts, and provides no

authority to set standard that purport to balance

costs and benefits.34

33 Petitioner Entergy mistakenly relies on Weinberger v.

Romero-Barcelo, 456 U.S. 305, 316 (1982) to support reading

the Clean Water Act to provide EPA broad discretion.

Petitioners Br. 37. Weinberger involved prosecutorial

discretion, not statutory discretion..

24

Il. SECTION 316(b) ESTABLISHES A

TECHNOLOGY-BASED STANDARD THAT

DOES NOT AUTHORIZE BALANCING

ENVIRONMENTAL BENEFITS AND

COMPLIANCE COSTS

As with the provisions laying out the Act’s other

technology-based standards, Section 316(b) directs

EPA to determine performance standards based

solely on technological capacity—in this case, the

capacity of technology to minimize the adverse

environmental impacts of intake structures. As with

the Clean Water Act’s other technology-based

standards, Section 316(b) sets a standard that does

not involve any determination of when it is

economically reasonable to allow environmental

harms.

Petitioners, however, argue that Section 316(b)

should be read to authorize EPA to set standards for

intake structures based on cost-benefit analysis

simply because Section 316(b) does not expressly

prohibit it. As Petitioner Entergy declares, “[iJn the

absence of statutory language clearly signaling

congressional disapproval, cost-benefit analysis is

always reasonable.” Entergy Br. 56. That argument,

however, runs counter to basic principles of statutory

construction and administrative law and is

inconsistent with the text and structure of Section

316(b).

25

A. The Absence of Express Prohibition to Set

Standards Based on Cost-Benefit Analysis

Is Not Tantamount to Congressional

Authorization

Petitioners repeatedly err in how they frame the

textual issue before this Court. They mistakenly

assert that EPA is entitled to deference because the

text of Section 316(b) does not “foreclose” or “forbid”

or “prohibit” cost-benefit analysis. See, e.g., Entergy

Br. 55; UWAG Br. 26, 31, 32. Under petitioners’

understanding of executive agencies’ authority, EPA

is free to set standards based on cost-benefit analysis

(or any other methodology it might choose) unless the

statute “unambiguously forbid[s]” it. UWAG Br. at 32.

To be sure, when it is unclear whether a statute

authorizes a particular regulatory approach, an

agency is entitled to deference if its chosen approach

is reasonable within the statutory context. See

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).

But there is no principle of statutory construction or

agency authority that remotely suggests that an

agency has power to do whatever it wants unless

Congress has unambiguously forbidden it.

By the same token, there is no support for the

notion that cost-benefit analysis is prohibited unless

Congress expressly authorized it, just as there is no

support for petitioners’ contrary suggestion that cost-

benefit analysis is presumptively authorized unless

Congress expressly prohibited it. As with other

questions of agency authority, whether cost-benefit

analysis is authorized depends on ordinary principles

of statutory construction. In the context of the Clean

Water Act, Congress gave careful consideration to the

question of how EPA should consider compliance costs

26

in setting performance standards. Whether those

standards should be based on cost-benefit analysis is

a fundamental policy choice that Congress cannot be

presumed to have concealed: “Congress, we have held,

does not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions—it

does not, one might say, hide elephants in

mouseholes.” Whitman v. Am. Trucking Assns., Inc.,

531 U.S. 457, 468 (2001).

EPA would be empowered to set standards under

Section 316(b) based on cost-benefit analysis only if

Congress authorized it. Id. (“[T]o prevail in their

present challenge, respondents must show a textual

commitment of authority to the EPA to consider costs

in setting NAAQS.”). The ordinary meaning and

structure of Section 316(b), however, show Congress

did not grant EPA the fundamental authority to

conduct a cost benefit analysis.

B. The Plain Text of Section 316(b) Does Not

Authorize Cost-Benefit Analysis

Petitioners and their amici strenuously and

extensively argue that it would be “rational,” Entergy

4, “reasonable,” UWAG Br. 4, “flexible,” ACC Br. 4, or

“sound,” AEI Br. 13, to authorize EPA to conduct

cost-benefit analysis under Section 316(b), but those

arguments are both wrong and beside the point. As

EPA acknowledges, “the question presented here is

not whether or to what extent cost-benefit analysis is

a good thing.” EPA Br. 14.%4 The issue instead is

34 Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 465,

(2001) (Scalia, J.) (“Were it not for the hundreds of pages of

briefing [industry challengers] have submitted on this issue,

27

whether Congress has authorized EPA to use a cost-

benefit analysis in applying Section 316(b). The text,

objective, and structure of Section 316(b) demonstrate

that it did not.*®

1. The Text of Section 316(b) Focuses on

Technological Capacity

Under Section 316(b), EPA properly identified

entrainment and impingement of fish and shellfish as

the primary “adverse environmental impacts”

associated with cooling water impact structures. EPA

Br. 2, 6; Pet. App. 3a, 226a. Having done so, EPA was

required to determine which of the “available”

technologies is “best” for “minimizing” those impacts.

A technology is available if it is “present and ready

for use,” but not if it is so costly as to be

unobtainable. See Environmental Respondents Br.

25. Once EPA identifies the pool of available

technologies, it must determine which of those

technologies is “best .. . for minimizing” impingement

and entrainment. “Best” means “surpassing all others

in excellence,” and “minimize” means to reduce to the

“smallest possible amount, extent, size or degree.” Id.

one would have thought it fairly clear that this text does not

permit the EPA to consider costs in setting the standards.”)

35 Petitioners’ reliance on Cass Sunstein’s writings is

inapposite. Entergy Br. 26 n.8. Professor Sunstein would

apply his cost benefit “default principles” only “/i/f Congress

has not referred to costs ... [or] resolved the question whether

costs should be considered.” Cass R. Sunstein, Cost-Benefit

Default Principles, 99 Mich. L. Rev. 1651, 1684-85 (2001)

(emphasis added). But of course the Clean Water Act does

refer to costs and resolves the questions concerning their

role, even as in Section 316(b) when it has not required a cost

benefit analysis.

28

25-26.58 Thus, under the plain terms of Section

316(b), technology that allows the smallest possible

amount of impingement and entrainment is the

“best” for “minimizing” those impacts.

Section 316(b), like the Clean Water Act’s other

technology-based standards, focuses on technological

capacity, not on how much environmental harm

should be allowed. Petitioners, however, read into

Section 316(b) nearly unlimited discretion to pick the

technology that is “best,” not at minimizing adverse

impacts, but “best” based on a “balancing of complex

goals.” Entergy Br. 32-33. Petitioners thus argue that

the “best technology available for minimizing adverse

environmental impact” is not necessarily the

technology that succeeds at reducing adverse

environmental impacts the most but instead is “the

most suitable or desirable technology available for

reducing such impact, to whatever extent the

decisionmaker believes appropriate in light of

competing values.” Entergy Br. 36. Petitioners simply

ignore the statutory language in asserting that EPA

can pick whatever technology it considers “best”

unmoored from a determination of whether the

38 See James R. May and Maya van Rossum, The Quick and

the Dead: Fish Entrainment, Entrapment, and _ the

Implementation and Application cf Section 316(b) of the

Clean Water Act, 20 Vt. L. Rev. 373, 385-86 (1995).

Petitioner's elaboration on the word “minimize” defies

etymology. Petitioner Br. 34. Using a word improperly does

not vitiate the word’s actual meaning. Just because someone

uses one word (here, “minimize”) when the meaning of

another word is intended (“reduce) (gas consumption,

workplace mishaps) does not mean that “minimize” now

means “reduce.”

29

technology is best “for minimizing § adverse

environmental impact.”

Likewise, petitioners’ construction of how EPA

should assess the “adverse environmental impacts”

ignores the Clean Water Act’s technology-based

approach. Petitioners construe the phrase to give

EPA authority to consider when protecting aquatic

life will produce “actual environmental benefit.”

Entergy Br. 2.; id. at 46-49; UWAG Br. 6-11.

Petitioners assert that EPA should consider that all

fish are not created equal; some fish are “nuisance

fish that federal and state regulators want to

eliminate,” while other fish are worthy of being

saved. Entergy Br. 23. According to petitioners, a loss

of fish may cause varying degrees of “adverse

environmental impact” depending on how aquatically

rich the water body is. Entergy Br. 48; UWAG Br. 9-

10. Petitioners thus would transform Section 316(b)

into a water quality-based approach, under which

regulators would attempt to assess exactly how much

environmental harm a loss of fish and _ other

organisms would cause in the context of particular

water bodies and then determine whether such harm

is acceptable.

Petitioners’ approach is precisely what Congress

rejected when it chose to ground the protection of

waters on technological capacity. As the Fourth

Circuit explained, setting technology-based standards

based on local environmental conditions “would

39 See, e.g., Appalachian Power Co. v. EPA, 671 F.2d 801, 809

n.3 (4th Cir. 1982); Hercules, Inc. v. EPA, 598 F.2d 91, 116

(D.C. Cir. 1978); Association of Pacific Fisheries v. EPA, 615

F.2d 794, 805 (9th Cir. 1980).

30

violate the plain intent of the [Clean Water Act] that

effluent limitations and guidelines are to be based

entirely upon technological standards and may not be

varied or modified due to the nature or quality of the

receiving waters.”

In Section 316(b), Congress did not assign EPA

the task of assessing the value of fish and other

aquatic life lost by entrainment and entrapment, nor

is EPA authorized to make the policy determination

of how many fish it is economically reasonable to

protect. Congress simply directed EPA to examine the

capacity of available technology to minimize

impingement and entrainment (or any other impacts

EPA properly identifies) and to set a performance

standard based on the technology that best minimizes

those effects. As with the determination of

technology’s capacity to reduce water pollution,

Section 316(b) focuses on technological capacity to

minimize entrainment and impingement and does not

call on EPA to determine how much impingement

and entrainment should be curtailed.*?

40 Appalachian Power, 671 F.2d at 806.

42 It is simply wrong to say that interpreting Section 316(b) to

authorize a cost-benefit analysis “reflects 30 vears of agency

practice” Entergy Br. 23, or a “longstanding policy.” EPA Br.

in passim. If anything, EPA’s position for four decades was

just the opposite, that “there is nothing in Section 316(b)

indicating that a cost/benefit analysis should be done.” In re

Public Service Co. of N.H. et al. (Seabrook Station Units 1

and 2) National Pollutant Discharge Elimination System

Permit, 10 Env'tt Rep. Cas. (BNA) 1257, 1261 (EPA June 17,

1977) (emphasis added); see J.A. 60. To the extent it has

considered cost effectiveness under Section 316(b), it has not

compared marginal costs with marginal environmental

31

2. The Text of Section 316(b) Does Not

Mandate a Particular Technology

Contrary to petitioners’ suggestion, Section 316(b)

does not mandate a particular technology—closed

cycle cooling towers—to minimize the adverse

environmental impacts of every existing intake

structure. Entergy Br. 13-14. The lower court did not

construe Section 316(b) as demanding either closed

cycle cooling for every Phase II facility, or that

industry pay “hundreds of millions or billions per

facility regardless of the cost or actual environmental

benefit,” Entergy Br. 2. The lower court did not read

the statute as mandating “the survival of every

possible fish.” Entergy Br. 36. Instead, as the lower

court held and Petitioners concede, Entergy Br. 14,

EPA has within its discretion expressed “best

technology available for minimizing adverse

environmental impact” as a range of performance

parameters, including an 80 to 95 percent reduction

in impingement and a 60 to 90 percent reduction in

entrainment for listed waters, such as the Great

Lakes, estuaries and tidal marshes, compared to a

baseline “zero technology alternative,” 69 Fed. Reg. at

41,590-41,601; Pet. App. 260a.

Thus, Section 316(b) authorizes EPA to enable

industry to comply by choosing among a “suite” of

innovative technologies, including (1) advanced

benefits. Rather, EPA has considered the monthly “marginal

rate increase” to customers of instituting a _ particular

technology, such as closed-cycle cooling towers. May and van

Rossum, 471-479. In reality, EPA has not seen fit to conduct

a cost-benefit analysis in applying Section 316(b) to an

existing facility.

32

removal and return systems, namely, traveling, disk,

drum, and fixed screens; (2) active exclusion

technologies, namely, wedgewire screens, perforated

pipes, radial wells, porous dikes, and artificial filter

beds; and (3) physical and behavioral diversion and/or

avoidance technologies, such as louvers, velocity caps,

and (4) physical and hydraulic barriers such as sound

barriers or bubble curtains. Jd; see May and Van

Rossum, at 456-459 (discussing availability of each

means of best technology available under Section

316(b)); State Br. as Respondent, 9-12 (discussing

state implementation of each means). These other

available technologies also happen to be a fraction of

the cost of closed-cycle cooling.

Section 316(b) does not, however, authorize EPA

to weigh costs against quantified environmental

benefits in establishing its performance standard.

But for EPA’s mistaken reliance on a cost-benefit

analysis that Section 316(b) does not authorize, the

performance parameters might have been more

stringent, say, calling for a 90 to 98 percent reduction

in impingement — instead of 80-95 percent — and a 80

to 95 percent reduction in entrainment — instcad of

60-90 percent. While EPA has discretion to express

technology based standards under Section 316(b) in

terms of a range of performance efficiency, it does not

have the discretion to conduct a cost-benefit analysis

in establishing the standard.

3. The Statutory Context of Section

316(b) Does Not Support Cost-Benefit

Balancing on a Site-Specific Basis

There is also no support for the proposition that a

permit writer (either EPA or the state) has “general

33

authority” to conduct an additional cost-benefit

analysis in implementing an “alternative” to best

technology available on a site-specific basis. Entergy

Br. 9, 15, 20. Essentially petitioners argue that the

section sub silentio provides for variances from

national performance standards.

Yet unlike other sections in the Act, Section 316(b)

does not provide for local variances of any kind, not to

mention based on a cost-benefit analysis. When the

Clean Water Act provides for local site-specific

variances it does so only under limited circumstances,

and never based on a local cost-benefit analysis. And

as mentioned above, it is assumed intentional when

Congress authorizes in one place in the statute what

it withholds in another.

In reality, the Clean Water Act severely restricts

the extent to which EPA and states may grant

variances from’. technology-based standards in

consideration of site-specific conditions. See e.g., 33

U.S.C. §1311(m) (variances from BPT and BCT under

limited specified conditions for certain discharges of

into “deep waters of the territorial seas.”); 33 U.S.C.

§1311(g)(1), (2)(A) — (C) (modifications from BPT for

certain pollutants); 33 U.S.C. §1311(n) (from BAT due

to “fundamentally different factors.”) Section 316(b),

on the other hand, does not authorize site-specific

variances, including those based on a local cost-

benefit analysis.

The plain text of Section 316(b) stands in sharp

contrast to its immediate neighbor, Section 316(a),

which allows for local variance for the discharge of

34

heated water. 33 U.S.C. § 1326(c).43 Close comparison

of Sections 316(a) and 316(b) supports the notion that

Section 316(b) sets national standards, as opposed to

allowing local variances based on costs or other

factors, not to mention a plenary cost benefit

analysis. Section 316(a) allows the permit writer

(either EPA or an authorized state agency) to issue a

variance whenever a permittee demonstrates that a

limit on discharge of heated water is more stringent

than necessary to assure “a balanced indigenous

population of shellfish, fish and wildlife in and on the

body of water into which the discharge is to be made.”

33 U.S.C. § 1316(a) (emphasis added). Section 316(b),

on the other hand, requires EPA to set BTA to

minimize adverse environmental impact whenever it

sets national performance based standards under

Sections 301 or 306. It does not allow agencies to

grant variances from BTA due to consideration of

local populations of shellfish, fish, or wildlife, or for

any other reason.

These subsections operate differently for good

reason: Section 316 is the result of compromise

respecting point sources that have intake structures.

Environmental Respondents Br. 7-9. The Senate

version of the section would have been solely

technology-based. The House version would have

been solely based on local water conditions. The

compromise was to have Sections 316(a) & (c) require

43 Section 316(a) governs discharges of “heat,” which the

Clean Water Act defines as a “pollutant,” 33 U.S.C. § 1362(6),

and therefore subject to the technology-based standards for

point source discharges of pollutants, 33 U.S.C. §§ 1311

(existing sources) & 1316 (new sources).

35

technology-based standards for discharges of heated

water subject to a 10-year variance based on local

water conditions, but to have Section 316(b) retain a

national t«+’.nology-based approach for minimizing

adverse envirssmental impact. Jbid. This is a

sensible compromise that the language of the CWA

clearly reflects.

CONCLUSION

For the reasons given above, as well as those

expressed in the briefs of respondents and their

amici, this Court should affirm the judgment of the

Second Circuit.

JAMES R. MAY JARED A, GOLDSTEIN*

Widener University Roger Williams

School of Law University

4601 Concord Pike School of Law

Wilmington, DE 19803 Bristol, RI 02809

(302) 477-2060 (401) 254-4594

* Counsel of Record