Opposition Brief — Utility Water Water Act Group Group v. Riverkeeper, Inc. (Nos. 07-597, 07-588, 07-589)

4

Nos. Om 07-589 & 0

In The SUPREME COURT, us

Supreme Court of the Anited States

ENTERGY CORPORATION,

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

PSEG Fossit LLC snp PSEG Nuc ear LLC,

Petitioners,

v.

RIVERKEEPER, INC., ET AL.,

| | - Respondents.

Utitity WATER Act GROUP,

Petitioner,

Vv.

RIVERKEEPER, INC., ETAL.,

Respondents.

On Petitions for Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

— — ——

BRIEF FOR RIVERKEEPER, INC., ET AL. IN OPPOSITION

P. Kent CORRELL Reep W. Surer

300 PaRK AVENUE Counsel of Record

17TH FLOOR LAW OFFICE OF REED W. SuPER

New York, NY 10022 116 JOHN STREET, SUITE 3100

(212) 475-3070 New York, NY 10038

(212) 791-1881

Counsel for Respondents Riverkeeper, Inc., et al.

February 29, 2008

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~ 800.890.5001

COUNTER STATEMENT OF

QUESTIONS PRESENTED

1. Whether the court of appeals properly remanded

the Environmental Protection Agency’s Phase II

cooling water intake structure regulations for further

rulemaking because of uncertainty as to whether EPA

based its determination of “best technology available”

(“BTA”) on cost-benefit analysis rather than on

economic availability, cost-effectiveness, or other

considerations permissible under the plain language of

Clean Water Act section 316(b). (07-588 Q3; 07-589

Q1; 07-597 Q1)

2. Whether the court of appeals correctly followed

its Phase I decision and remanded a provision in EPA’s

Phase II cooling water intake structure regulations

that would have allowed compliance with section

316(b) through “restoration measures.” (07-589 Q2;

07-597 Q2)

3. Whether section 316(b) of the Clean Water Act

applies to both new and existing facilities, as its plain

language makes clear and as the courts and EPA have

consistently recognized since the statutory provision

was enacted in 1972. (07-588 Qs1&2)

il

CORPORATE DISCLOSURE STATEMENT

Respondents Riverkeeper, Inc., Natural Resources

Defense Council, Waterkeeper Alliance, Soundkeeper,

Inc., Scenic Hudson, Inc., Save the Bay—People for

Narragansett Bay, Friends of Casco Bay, American

Littoral Society, Delaware Riverkeeper Network,

Hackensack Riverkeeper, Inc., New York/New Jersey

Baykeeper, Santa Monica Baykeeper, San Diego

Baykeeper, California Coastkeeper, Columbia

Riverkeeper, Conservation Law Foundation, and

Surfrider Foundation have no parent corporations, and

no publicly owned company owns stock in them.

lit

TABLE OF CONTENTS

Page

PRESENTED -..-sesscssvestsseessseevecseed

CORPORATE DISCLOSURE STATEMENT ..... ii

TABLE OF AUTHORITIES .................. iv

COUNTER STATEMENT OF THE CASE ...... 1

Cooling Water Intake Structures ......... 2

EPA Rulemaking under Section 316(b).... 3

REASONS FOR DENYING THE PETITIONS ... 9

I. THERE IS NO VALID REASON FOR

REVIEW NOW, WHILE REMAND

PROCEEDINGS ARE PENDING........ 10

Il. THEREIS NOCIRCUIT SPLIT ........ 15

A. Cost Considerations ............. 16

B. Restoration Measures ........... 20

C. Existing Facilities .............. 22

Ill. THE DECISION BELOW IS CORRECT... 24

A. Cost Considerations ............. 24

B. Restoration Measures ........... 27

C. Existing Facilities .............. 29

| TRUE TTC CT CTI TUTE TT TTT Tee 30

iv

TABLE OF AUTHORITIES

Cases

American Petroleum Institute v. EPA,

661 F.2d 340 (5th Cir. 1981) .............. 25

American Textile Manufacturers

Institute, Inc. v. Donovan,

452 U.S. 490 (1981) ............... 24, 25, 26

Appalachian Power Co. v. Train,

566 F.2d 451 (4th Cir. 1977) ............ 3,15

BP Exploration & Oil, Inc. v. EPA,

66 F.3d 784 (6th Cir. 1995) ............... 19

Chevron U.S.A., Inc. v. Natural

Resources Defense Council,

eee passim

Clingman v. Beaver,

nce eens ccpoceesees 23

ConocoPhillips Co., et al. v. EPA,

5th Cir. Dkt. No. 06-60662 ................ 9

E.I. du Pont de Nemours & Co. v. Train,

EE MID neg 0 4 60. 0. 6-0 G0. 0.0.6.% 66 65058 29

EPA v. National Crushed Stone Ass’n,

ed od wanda ek shee ae 19

Natural Resources Defense Council v. EPA,

859 F.2d 156 (D.C. Cir. 1988) ............. 23

Riverkeeper, Inc. v. EPA,

358 F.3d 174 (2d Cir. 2004) ............ passim

Riverkeeper, Inc. v. EPA,

475 F.3d 83 (2d Cir. 2007) ............. passim

v

TABLE OF AUTHORITIES

-continued-

Page(s)

Seacoast Anti-Pollution League

v. Costle

597 F.2d 306 (1st Cir. 1979) ..... 15, 16, 17, 21

United States Steel Corp. v. Train,

556 F.2d 822 (7th Cir. 1977) ........ 15, 18, 22

Virginia Electric & Power Co. v. Costle,

66 F.2d 446 (4th Cir. 1977) .............. 22

Walters v. Metropolitan Education

Enterprises, Inc., }

ee , EOD bin vo vcs cee céaus seseen 28

Weyerhaeuser Co. v. Costle,

590 F.2d 1011 (D.C. Cir. 1978) ............ 19

Whitman v. American Trucking Ass’ns,

ke ff , eaerneiireiy sess 25, 26

Statutes and Regulations

ft eR EE rng rer 26

Roe FoR B.S | rer a 19

3Oo U.B.C. & BBEBIBMAMA) .. nw ccc cccccccccces 26

ats oe ef 00Ul) ee oe 26

(Bis Foe 8) Ul ee 26

33 UBC. 6 SEROMA) .. nw cc ccccccvecsveces 19

Se See, ED 0 0 4 0-0 éccnedee cee eee 21

oR ee passim

vi

TABLE OF AUTHORITIES

-continued-

Page(s)

33 U.S.C. § 1342(aX 1A) ..........-. 2 eee 30

42 U.S.C. § 300g-1(bX3(C)\MUIV) .......--.... 26

42 U.S.C. § 7545(cM2KB) .... 2... cee eee eee 26

ss eo. see eknbeeseeeees 26

Ce Gs | ee eee eee 4

es LD onc ccc cc cccccccncs 4,13

to sath eeniceceeseonee 4,13

ek A RF) ee rere 4,13

40 C.F. § 126.90 et eq. ... 1. ccc cece 5

eh SR re 5

40 C.F.R. § 125.94(aM5Xii) .. 2... eee eee eee 5

ee ka ee Sec eke eases ces 5

Ee 5

Other Authorities

41 Fed. Reg. 17,387 (Apr. 26, 1976) ............ 3

44 Fed. Reg. 32,853 (June 7, 1979) ............. 3

66 Fed. Reg. 28,853 (May 25, 2001) ............ 2

66 Fed. Reg. 65,255 (Dec. 18, 2001) ......... 3, 20

67 Fed. Reg. 17,121 (Apr. 9, 2002) ....... 5, 12, 13

vil

TABLE OF AUTHORITIES

-continued-

Page(s)

69 Fed. Reg. 41,575 (July 9, 2004) ........... 2,5

69 Fed. Reg. 68,443 (Nov. 24, 2004) ........... 28

71 Fed. Reg. 35,005 (June 16, 2006)............ 8

72 Fed. Reg. 37,107 (July 9, 2007) .......... 8, 10

Berea Caetene Bieta Bs oe ccc ccc cccccesas 10

1

COUNTER STATEMENT OF THE CASE

In language not repeated elsewhere in the Act or in

any other federal statute, section 316(b) of the Clean

Water Act (“CWA”) provides that “[a]ny standard

established pursuant to section 301 or section 306 of

this Act and applicable to a point source shall require

that the location, design, construction, and capacity of

cooling water intake structures reflect the best

technology available [‘BTA’] for minimizing adverse

environmental impact.” 33 U.S.C § 1326(b). Section

316(b) is the only provision in the statute that

regulates water withdrawals, as opposed to discharges.

In this case, which presents questions of first

impression concerning the application of this unique

statutory language to a novel Environmental

Protection Agency (EPA) rulemaking, the Second

Circuit unanimously remanded EPA’s rule for further

explanation and possible revision. Riverkeeper, Inc. v.

EPA (“Riverkeeper IT’), 475 F.3d 83 (2d Cir. 2007);

App. la-86a.' Significantly, EPA has not sought

review by this Court and is reconsidering its rule on

remand. Only industry parties have filed petitions for

certiorari.

The petitions should be denied for three reasons.

First, the further administrative proceedings on

remand make review premature, and petitioners’

exaggerated claims about the purportedly devastating

impact of the court’s ruling ignore the indisputable fact

that the effect of that ruling has yet to be determined.

Second, there are no circuit splits. Third, the court’s

decision is correct on the merits, and there is no

* Citations to “App.” refer to petitioner PSEG’s appendix.

2

compelling reason for this Court to review the court of

appeals’ fact-specific application of this unique

statutory language to EPA’s rulemaking.

Cooling Water Intake Structures

Section 316(b) directs EPA to regulate cooling

water intake structures, through which power plants

and other heavy industrial facilities withdraw cooling

water from natural waterbodies. Such structures “kill

or injure billions of aquatic organisms every year” by

trapping (or “impinging”) them against grills or

screens or drawing them into the cooling system

(“entraining” them). Riverkeeper II, App. 2a; see also

Riverkeeper, Inc. v. EPA (“Riverkeeper I”), 358 F.3d

174, 181 (2d Cir. 2004) (“A single power plant might

impinge a million adult fish in just a three-week

period, or entrain some 3 to 4 billion smaller fish and

shellfish in a year, destabilizing wildlife populations in

the surrounding ecosystem.”). Intake structures affect

the full spectrum of aquatic organisms, from plankton

to sea turties, including threatened and endangered

species. 69 Fed. Reg. 41,575, 41,586-87 (July 9, 2004).

Available technology can dramatically reduce this

environmental damage. Some plants are “dry-cooled”

by air instead of water, and many others employ

“closed-cycle” water cooling systems that reduce

withdrawals and aquatic mortality by 70 to 96 percent

compared to the relatively primitive “once-through”

cooling systems used by older plants. Virtually all gas-

fired power plants and two-thirds of coal-fired plants

built in the last 25 years use closed-cycle cooling. 66

Fed. Reg. 28,853, 28,856 (May 25, 2001); see also NEI

Amicus Br. 16 (about 40 percent of nuclear plants are

closed-cycle). Other technologies, such as fine-mesh

3

screens, barrier nets, and fish diversion or return

systems, are designed to exclude organisms from

intakes or return them to waterways.

EPA Rulemaking under Section 316(b)

The 1976 Regulations. In 1976, EPA promul-

gated section 316(b) regulations,” but the regulations

were remanded by the Fourth Circuit because of a

notice-and-comment violation, Appalachian Power Co.

v. Train, 566 F.2d 451, 457 (4th Cir. 1977), and with-

drawn. 44 Fed. Reg. 32,853, 32,956 (June 7, 1979).

EPA issued no new section 316(b) regulations in the

1980s or 1990s. Absent regulations, permits for intake

structures were issued during that time by EPA and

state agencies on a case-by-case, “best professional

judgment” basis.

Between 1995 and 2002, EPA agreed to a series of

consent decrees requiring it to conduct rulemaking

under section 316(b), amd ultimately decided to pursue

the rulemaking in three phases: (1) Phase I (new

facilities); (2) Phase II (large existing power plants);

and (3) Phase III (small existing power plants and all

other existing facilities). App. 4a-5a.

Phase I. In 2001, EPA promulgated its Phase I

Rule covering cooling water intake structures at new

facilities. 66 Fed. Reg. 65,255 (Dec. 18, 2001). The

Phase I Rule requires larger new facilities to use

* At that time, EPA refused to determine BTA based on cost-

benefit analysis, explaining that “[t]he statute directs the Agency

to ... select the most effective means of minimizing (i.e., ‘reducing

to the smailest possible amount or degree’) th[e] adverse effects.”

41 Fed. Reg. 17,387, 17,388 (Apr. 26, 1976).

4

cooling water intakes that withdraw no more water

than a closed-cycle system. 40 C.F.R. § 125.84(b)(1).

The Phase I Rule also includes a second compliance

track under which a facility can escape limits on

intake flows if it uses other technologies that achieve

comparable reductions of adverse environmental

impacts, see 40 C.F.R. §§ 125.84(d)(1), 125.86(c)(2), and

a “variance” provision if compliance at a particular

facility would be excessively costly or have adverse

impacts on air or water quality or energy markets. 40

C.F.R. § 125.85. In addition, the Phase I Rule would

have allowed compliance solely through habitat

“restoration measures” designed to offset the adverse

impact of cooling water withdrawals. 66 Fed. Reg. at

65,280-81. Like the remanded 1976 regulations, the

Phase I requirements were not based on cost-benefit

analysis. Instead, EPA “selected best technology

available for minimizing adverse environmental

impact on the basis of what it determined to be an

economically practicable cost for the industry as a

whole.” 66 Fed. Reg. at 65,309. EPA gave three

reasons, including “cost-effectiveness,” for rejecting

standards based on dry cooling. 66 Fed. Reg. at

65,282-84.

In consolidated challenges by environmentalists

and industry, the Second Circuit upheld most of the

Phase I Rule, Riverkeeper I, 358 F.3d at 181, but

remanded the “restoration measures” provision “as

plainly inconsistent with the statute’s text” because

they did not involve the “location, design, construction,

and capacity” of intake structures, id. at 189, and did

not meet the statutory requirement of “minimizing the

adverse environmental impact” of those structures. Id.

5

at 190. No party sought certiorari, and the

Riverkeeper I decision is final.

Phase II. In 2004, EPA promulgated the Phase II

Rule at issue here, applicable to large existing power

plants. 69 Fed. Reg. 41,575 (July 9, 2004), codified at

40 C.F.R. § 125.90 et seg. The Phase II Rule set

performance standards requiring a 60-90 percent

reduction in entrainment and a 80-95 percent

reduction in impingement, to be achieved through any

technologies. 40 C.F.R. § 125.94(b). EPA based these

standards on a suite of technologies.

The Phase II Rule included alternative compliance

options allowing facilities to elect a less stringent

determination of BTA based on either cost-cost

analysis (comparison of a facility's costs to those

considered by EPA) or cost-benefit analysis. 40 C.F.R.

§ 125.94(a)(5)(i), (ii). Like the Phase I Rule, the Phase

II Rule also allowed compliance through “restoration

measures.” 40 C.F.R. § 125.94(c).

The Phase II Rule rejected stricter requirements

based on closed-cycle cooling. One alternative EPA

considered but rejected was a flow limit commensurate

with closed-cycle cooling for 51 facilities — less than ten

percent of the facilities covered by the rule — with

extremely large withdrawals from waterbodies

containing essential habitat and nursery areas. 67

Fed. Reg. 17,121, 17,155-58 (Apr. 9, 2002).

Both environmentalists and industry challenged

the Phase II Rule in consolidated petitions. In the

unanimous decision below, the Second Circuit rejected

Entergy’s claim that section 316(b) applies only to new

facilities and remanded eight aspects of the rule to

6

EPA for further rulemaking because it found they were

“inadequately explained or inconsistent with the

statute, or because the EPA fa led to give adequate

notice of its rulemaking.” App. sa.

In the holding to which petitioners primarily object,

the court of appeals stated: “If the EPA construed the

statute to permit cost-benefit analysis, its action was

not ‘based on a permissible construction of the

statute.” Id. at 33a (quoting Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 843 (1984)).

Significantly, the court of appeals did not construe

section 316(b) as barring cost considerations entirely.

Rather, it held that the “statutory language suggests

that the EPA may consider costs in determining BTA,

in that a technology that cannot not be reasonably

borne by the industry is not ‘available’ in any

meaningful sense,” but that “cost-benefit analysis is

not similarly supported by the language or purpose of

the statute.” Jd. at 21a. The court further explained

that, in determining BTA, EPA must “first determine

what is the most effective technology” and “whether

the industry as a whole can reasonably bear the cost of

the adoption of the technology,” id. at 23a, and that

“EPA may then consider other factors, including cost-

effectiveness, to choose a less expensive technology

that achieves essentially the same results as the

benchmark.” Jd. at 23a-24a. Finally, the court

explained that EPA “may also depart from this

performance benchmark because of other permissible

considerations aside from cost, for instance, energy

efficiency or environmental impact.” Jd. at 24a n.12

(citing Riverkeeper I, 358 F.3d at 195-96).

7

Notably, the court’s ruling concerning the

appropriate role of costs under section 316(b) did not

lead it to reject EPA’s BTA determination definitively.

Although the court said that cost-benefit analysis

“appears to have played some role” in EPA’s BTA

determination, id. at 29a, the court found it “unclear

whether the Agency improperly weighed the benefits

and the costs.” Id. (emphasis added); see also id. at

32a (“[I]t is impossible to tell whether the EPA based

its decision on permissible cost-effectiveness analysis

or exceeded its authority by relying impermissibly

upon a cost-benefit analysis.”) (emphasis added). Asa

result, the court concluded that “[i]t may also be that

the EPA misunderstood or misapplied cost-

effectiveness analysis” or “may have simply failed

either to perform the required analysis or to explain

adequately a decision that was within its authority to

make.” Id. at 33a. Accordingly, the court “remand|ed!

to the EPA the provision establishing BTA so that it

may provide either a reasoned explanation of its

decision or a new determination of BTA based on

permissible considerations.” Id. at 85a. Importantly,

the court required only “clarification of the basis for

the Agencys action and possibly ... a new

determination of BTA.” Jd. at 33a (emphasis added).

The court also remanded several other provisions that

were based on the same considerations as, or closely

interrelated with, the BTA determination.

With respect to restoration measures, the court

followed its decision in Riverkeeper I in finding that, by

allowing compuance through restoration measures,

EPA had impermissibly construed section 316(b). Jd.

at 85a.

8

Finally, the court rejected Entergy’s claim that

section 316(b) applies only to new facilities, id. at 65a-

70a, holding that the plain language of section 316(b),

and in particular its reference to section 301, which

applies to existing point sources, indicates that the

section applies to existing facilities, and that even if

the language were ambiguous, EPA’s reasonable and

longstanding interpretation of it as applying to

existing facilities was entitled to Chevron deference.

EPA did not seek rehearing, and petitioners’

rehearing requests were denied with no judge voting

for rehearing. Anp. 88a-89a. Upon remand, the

agency suspended virtually the entire Phase II Rule,

72 Fed. Reg. 37,107 (July 9, 2007), and commenced

further rulemaking proceedings. Until EPA prom-

ulgates a new final Phase II Rule, “{plermit —

requirements for cooling water intake structures at

Phase II facilities should be established on a case-by-

case best professional judgment (BPJ) basis.” Id. at

37,108. EPA’s suspension of the rule thus restored the

status quo ante with respect to permitting of power

plant cooling water intakes that has been in effect for

35 years.

Phase III. In 2006, EPA promulgated Phase III

regulations applicable to new offshore oil rigs, that

were not based on cost-benefit analysis. 71 Fed. Reg.

35,005 (June 16, 2006). Simultaneously, EPA decided,

on the basis of an explicit cost-benefit analysis, not to

promulgate section 316(b) regulations for existing

manufacturing facilities. Jd. at 35,016-17. In

consolidated petitions pending before the United

States Court of Appeals for the Fifth Circuit, industry

contends that EPA should have conducted a cost-

9

benefit analysis, while the environmental petitioners

challenge EPA’s explicit reliance on cost-benefit

analysis. ConocoPhillips Co., et al. v. EPA, 5th Cir.

Dkt. No. 06-60662 (and consolidated cases). Thus, the

Fifth Circuit is currently considering “precisely the

same issue” the Second Circuit decided below —

whether EPA has authority to rely on cost-benefit

considerations under section 316(b). UWAG Pet. 18;

see also PSEG Pet. 13-14.

REASONS FOR DENYING THE PETITIONS

The decision below involves issues of statutory

interpretation whose impact on the regulation at issue

remains undetermined because of the court’s remand

to EPA for clarification of the basis of its decision.

Moreover, the Second Circuit’s conclusions that section

316(b) applies to existing facilities and that Congress

intended EPA to implement that section without

engaging in cost-benefit analysis or allowing

compliance through “restoration” measures reflect

application of standard principles of statutory

construction to unique statutory language, applied to

a single regulation, and do not conflict with decisions

of any other court of appeals. Should a conflict

eventually arise, there will be ample opportunity for

this Court to address it either in the Phase III case

that is still pending or in further judicial review

proceedings once EPA completes its reconsideration of

the Phase II Rule. Meanwhile, particularly in light of

the correctness of each of the Second Circuit’s rulings,

review by this Court is not warranted.

10

I. THERE IS NO VALID REASON FOR

REVIEW NOW, WHILE REMAND

PROCEEDINGS ARE PENDING

The Second Circuit’s decision remanded the Phase

II Rule for further explanation and possible revision in

light of the court’s opinion. The court noted that “EPA

in reconsidering its selection of BTA on remand may

alter the suite of technologies it originally selected,”

App. 34a, but the court did not say such alteration was

required, much less foreordain the exact features of a

properly explained and justified rule.

EPA has not sought review of the court’s ruling,*

but instead has suspended the Phase II Rule almost

entirely “while the Agency considers bv to address

the remanded issues.” 72 Fed. Reg. at 37,108. As

directed by the remand, EPA is reconsidering the core

provisions of the Phase II Rule, including the BTA

determination, the establishment of requirements

reflecting BTA, and the various options for complying

with or obtaining variances from those requirements.

Whatever the result of its reevaluation, EPA must

notice a new proposed Phase II Rule in the Federal

Register for public comment and then, after

considering and responding to those comments, issue

a new Phase II Rule. Only when the regulatory

process is complete will the practical impact of the

Second Circuit’s ruling become clear. Moreover,

because major parts of the rule were also remanded on

* Although we have no way of knowing what EPA may say in

response to the petitions, we note that the non-extendable time in

which EPA may file a response supporting the petitions under this

Court’s Rule 12.6 has long since passed.

11

grounds as to which petitioners have not sought this

Court’s review, further rulemaking would be required

even if this Court were to grant the petitions and then

agree with petitioners that EPA’s BTA determination

was proper. Thus, no action by this Court would

reinstate the Phase II Rule as promulgated.

When it does promulgate a new Phase II Rule, EPA

may change its BTA determination substantially,

modestly, or not at all. Another round of judicial

review is virtually inevitable, but whether it will be

the industry petitioners or environmental groups that

are aggrieved by how EPA carries out the remand

remains to be seen. In any event, any further review

will be based on a complete record, following proper

notice and comment. The Second Circuit will then

determine whether EPA’s reexamination of its actions

is consistent with section 316(b), supported by the

record, and not arbitrary and capricious. In the event

that, at the end of the day, the industry petitioners are

dissatisfied by some feature of the final rule that is

attributable to one of the aspects of the Second

Circuit’s holding that they now challenge, the

petitioners could seek review of the issue by this Court

at that time. The effectively interlocutory posture of

the proceedings below thus counsels strongly against

granting the petitions.

Meanwhile, the parade of economic and energy-

related horribles petitioners and amici conjure up to

justify review is, at this point, completely unfounded.

Their forecasts of exorbitant compliance costs, facility

closures, and grid failure are all premised on the

hypothetical presupposition that EPA will promulgate

a new rule that compels substantially all 550 Phase II

12

facilities to retrofit to closed-cycle cooling. See PSEG

Pet. 32-36, UWAG Pet. 36-39. But petitioners them-

selves concede that the decision below does not

mandate such a result. See, eg., UWAG Pet. 37

(““UWAG does not believe that retrofitting closed-cycle

cooling can be justified even after Riverkeeper II...”).

Indeed, petitioners and amici admit that their true

concern is not with the decision itself, but with what

they consider to be the “implication[s] of the Second

Circuit’s opinion,” PSEG Pet. 33, or what they predict

EPA or others will contend those implications are.

See, e.g., NEI Amicus Br. 9 (respondents “will no doubt

argue that the court’s reasoning requires that result”);

see also id. at 2 (“court’s reasoning may require the

EPA to mandate” retrofits). But until the admin-

istrative process is complete, predictions about what

EPA may do, or what others may argue it should do, do

not justify this Court’s intervention.*

Moreover, although predicting what EPA might

ultimately include in a revised Phase II Rule is

speculative, the BTA option EPA rejected on the basis

of what appeared to the court of appeals to »nclude

improper considerations would not have established a

flow limit based on closed-cycle cooling for all facilities,

but only for the 51 largest plants (less than ten percent

of those covered by th® rule) located “on sensitive

waterbodies.” Riverkeeper II App. 29a; 67 Fed. Reg. at

‘If any permits are issued on a case-by-case basis while EPA

is reconsidering the rule, permittees and other interested parties

will have ample opportunities to challenge any permit provisions

they consider to be improperly based on the “implications” of the

Second Circuit's opinion.

13

17,156-58. EPA concluded that adverse economic and

environmental effects of this alternative would be

minimal and compliance costs low. Id.

Further, that EPA may base its BTA determination

on a particular technology does not mean that all

facilities will necessarily install that technology and

incur the associated costs. For example, the Phase I

Rule included both a second compliance track and a

variance provision applicable if compliance would

impose excessive costs or involve other adverse

impacts. 40 C.F.R. §§ 125.84(d)(1), 125.86(c)(2),

125.85. Both alternative compliance provisions were

upheld by the Second Circuit. Riverkeeper I, 358 F.3d

at 187-89, 192-94.

PSEG’s claim that the decision below “blithely

accepts the bankruptcy or closure of numerous

electricity generating facilities, without considering

impacts to the U.S. electric supply,” PSEG Pet. 34

(emphasis added), and numerous other similar claims

regarding the court’s alleged indifference to economic

and technological burdens, facility closures, or energy

impacts, are simply incorrect. As in Riverkeeper I, in

the decision below the court recognized that a

technology is not “available” unless its costs can be

reasonably borne by the industry. Riverkeeper II, App.

21a; Riverkeeper I, 358 F.3d at 195. Cost-effectiveness

may also be considered. Riverkeeper II, App. 23a.

Moreover, the Second Circuit stated that other

“permissible considerations” include “energy efficiency

and production concerns.” Riverkeeper II, App. 24a

n.12 (citing Riverkeeper I, 358 F.3d at 195-96).

Accordingly, EPA will, no doubt, consider economics,

facility closures, and any energy impacts on remand,

14

and if the agency does not do so to petitioners’ liking,

they will surely challenge its decision once it is final.

Similarly unwarranted are the assertions by

petitioners and amici that the decision below “will

significantly affect our Nation’s environmental

priorities” by increasing fossil fuel consumption with

its associated air pollution and greenhouse gases. See,

e.g., PSEG Pet. 32, 35; UWAG Pet. 38-39; NEI Amicus

Br. 18-20. As petitioner UWAG admits, the decision

below “acknowledges EPA’s right to consider” such

environmental effects. UWAG Pet. at 39. Again, EPA

will doubtlessly consider them on remand, and if it

does not, petitioners will surely challenge the revised

rule on that basis.

Also unavailing are petitioners’ claims of absurd

results, such as the expenditure of billions of dollars to

save “a single fish larvae.” Entergy Pet. 3, 4; see also

CWISC Amicus at 6 (“one additional fish”). To the

contrary, the Phase II Rule applies only to facilities

withdrawing large volumes of water, at least 50

million gallons per day, and, as EPA found, these large

power plants kill aquatic organisms in enormous

numbers. See supra at 2. Unless and until the course

of actual rulemaking substantiates petitioners’

purported fear that the agency will require extreme

measures to save a single fish, their hyperbole

provides no basis for review.

In short, even if petitioners’ legal positions were

arguably meritorious, which they are not, now is not

the time for the Court to address them, particularly in

light of the federal government’s determination not to

seek certiorari despite EPA’s strong disagreement with

aspects of the Second Circuit’s ruling.

15

II. THERE IS NO CIRCUIT SPLIT

There are no conflicts among the circuits over the

issues decided by the court of appeals. The absence of

conflict is hardly surprising because section 316(b) is

a singular provision rarely before construed, in part

because of EPA’s lengthy failure to promulgate cooling

water intake standards. Indeed, until the Second

Circuit’s 2004 decision in Riverkeeper I, no court ever

had occasion to review the substance of a section

316(b) regulation. Although Congress enacted section

316(b) in 1972, the only regulations EPA issued under

that section — before its current, three-part rulemaking

— were the 1976 regulations remanded by the Fourth

Circuit on purely procedural grounds. Appalachian

Power Co. v. Train, 566 F.2d 451, 457 (4th Cir. 1977).

Only two other court of appeals decisions have

construed section 316(b), both in the 1970s and in the

context of permits issued by EPA on a case-by-case

basis in the absence of national regulations. U.S. Steel

Corp. v. Train, 556 F.2d 822 (7th Cir. 1977); Seacoast

Anti-Pollution League v. Costle, 597 F.2d 306 (1st Cir.

1979).

Riverkeeper II is perfectly consistent with the very

limited section 316(b) authority that preceded it —

Riverkeeper I and the two 1970s permitting cases.

There is no reason to abandon this Court’s usual

practice of awaiting a conflict among the circuits

before accepting review. As petitioners themselves

note, in reviewing EPA’s Phase III rule the Fifth

Circuit is currently considering “precisely the same

issue” that the Second Circuit decided below as to

whether EPA may rely on cost-benefit considerations

under section 316(b). UWAG Pet. 18. If the Fifth

16

Circuit disagrees with the Second, and a conflict does

materialize, there will be ample opportunity for EPA,

petitioners, or any party aggrieved by either circuit’s

decision to seek this Court’s review. Not only could

Riverkeeper or the other environmental petitioners in

the Phase III case file a petition for a writ of certiorari

to the Fifth Circuit, but, in addition, once the Second

Circuit reviews the revised Phase II Rule that EPA

will issue on remand, any aggrieved parties could file

a new petition for certiorari (assuming they were in

fact injured by features of the revised rule attributable

to the court’s holding that the statute does not permit

cost-benefit analysis). Review now, before a conflict

has arisen, is unwarranted and unnecessary.

A. Cost Considerations

1. The decision below does not conflict with the

First Circuit’s 1979 decision in Seacoast. There, in

approving a permit for New Hampshire’s Seabrook

power plant, the court did not hold that EPA may base

section 316(b) determinations on _ cost-benefit

considerations. 597 F.2d at 311. Indeed, in the single

paragraph of the opinion that discussed costs, that

court did not even consider that issue, nor was it asked

to. Rather, noting that petitioners’ challenge was “not

a model of clarity” and understanding them only to

“suggest that cost of delay is an improper

consideration,” the First Circuit denied their claim

(without deciding whether considering such costs

would be improper) because it was based on a

misreading of the record. Jd. (“Apparently petitioners

read the cost figure ... as including the estimated costs

of delay and reengineering as well as additional

17

tunnelling. ... The record is clear, however, that $20

million is the cost of the tunnelling alone.”).

The First Circuit explicitly stated that the Seacoast

petitioners “d[id] not argue that the cost may not be

considered.” Jd. (emphasis added). The court’s

observation that “cost” — not cost-benefit analysis —

“[is] an acceptable consideration in determining

whether the intake design ‘reflect(s) the best

technology available,” id., is fully consistent with

Riverkeeper I and Riverkeeper II, which found both

economic availability and cost-effectiveness to be

proper considerations. Indeed, we readily acknow-

ledge that consideration of compliance costs (as

opposed to cost-benefit analysis) is proper under

section 316(b).

To be sure, the First Circuit also noted that the

EPA “Administrator decided that moving the intake

further offshore might further minimize _ the

entrainment of some plankton, but only slightly, and

that the costs would be ‘wholly disproportionate to any

environmental benefit.” Jd. But that decision was

apparently based on cost-effectiveness (because the two

intake locations had essentially the same benefit),

rather than cost-benefit. See Riverkeeper II, App. 20a-

21a (comparing the two types of analyses). Certainly,

nothing in the First Circuit’s opinion addresses the

distinction drawn below between cost-effectiveness and

cost-benefit analysis, let alone sets forth a holding on

the point that conflicts with the Second Circuit’s.

Thus, contrary to PSEQG’s argument, it is not at all

“clear [that] the First Circuit would have decided this

case differently.” PSEG at 25.

18

2. Nor are there any other conflicting appellate

decisions.” PSEG’s speculation that “the Sixth and

D.C. Circuits ... would have decided this case

differently,” PSEG Pet. 21, is unfounded because those

circuits have never construed section 316(b). The host

of cases PSEG and the other petitioners cite construed

the language of other sections of the Clean Water Act,

such as sections 301, 304 and 306, or other environ-

mental laws entirely. See PSEG Pet. 19-21; UWAG

Pet. 27-28; Entergy Pet. 31-33. Thus, none of them is,

or could be, in direct conflict because the heart of this

case is section 316(b)’s distinctive text.

As petitioners themselves recognize, section

316(b)’s standard is “unique,” PSEG Pet. 11; see also

Entergy Pet. 4, and, as the Second Circuit has ex-

plained, “cooling water intake structures are suorum

generum.” Riverkeeper I, 358 F.3d at 186. That the

court of appeals looked for “guidance” to other courts’

interpretations of other CWA provisions, and observed

that they support its construction of 316(b), does not

* This Court need not consider UWAG’s citation to a single

sentence of dicta from United States Steel v. Train, 556 F.2d 822

(7th Cir. 1977), UWAG Pet. 21, because UWAG itself concedes

there is no actual conflict with the Seventh Circuit on this point.

See id. at 19 (arguing that First Circuit is “only other circuit that

has decided the § 316(b) issue presented here”). In fact, U.S. Steel

rejected, as premature, the argument that EPA must do a cost-

benefit analysis, and it is unclear from the dicta UWAG cites to

what extent that court’s expectation of how EPA would take costs

into account would differ from the cost-effectiveness analysis that

the Second Circuit's decision permits. 556 F.2d at 850.

19

establish a conflict.° Thus, there is no merit to

petitioners’ and amici’s claims that the decision below

should be reviewed because it “may also sweep far

broader than §316(b)” and affect other CWA provisions

or other laws, or “invite[ ] a rash of challenges to

NPDES permits.” PSEG Pet. 36; see also Entergy Pet.

31; CWISC Amicus Br. 16-17. In short, the Second

Circuit interpreted only section 316(b) and did not

purport to issue holdings concerning any other

statutes.

PSEG’s claim that “until this case, no court has

ever held that EPA is prohibited from considering costs

in relation to benefits,” PSEG Pet. 20, merely reflects

the fact that, before appearing to do so in promul-

gating its Phase II Rule, EPA never relied on cost-

benefit analysis in promulgating BTA standards for

® Petitioners’ attempt to manufacture a conflict is also based

on their incorrect suggestion that EPA may rely on cost-benefit

analysis in establishing effluent limitations based on “best

available technology” (“BAT”) under sections 301 and 304. Their

argument is irreconcilable with the language of the statute, 33

U.S.C. §§ 1311(bX 2A), 1314(b)(2)(B), and with EPA v. National

Crushed Stone Ass’n, 449 U.S. 64 (1980), which recognized that “in

assessing BAT total cost is no longer to be considered in

comparison to effluent reduction benefits.” Jd. at 71. Petitioners

also mischaracterize Weyerhaeuser Co. v. Costle, 590 F.2d 1011

(D.C. Cir. 1978) and BP Exploration & Oil, Inc. v. EPA, 66 F.3d

784 (6th Cir. 1995). In neither case had EPA used cost-benefit

analysis to establish BAT, and thus neither court held such

analysis proper. Rather, the Sixth Circuit decision cited the

earlier D.C. Circuit decision, which was discussing the 1977 “best

practicable control technology,” or “BPT,” standards, not the 1983

BAT standards. Id. at 796 (citing Weyerhaeuser, 590 F.2d at

1045).

20

intake structures under section 316(b) (or, for that

matter, in promulgating BAT effluent limitations

under sections 301 and 304). Petitioners acknowledge,

as they must, that “numerous circuits have recognized

that EPA is not required to consider costs and benefits

when setting BAT,” PSEG Pet. 20, but fail to identify

any case where EPA did use cost-benefit analysis to

set such standards, let alone a case where such a

decision was upheld in court.

Finally, PSEG’s argument that the decision below

is “hard to reconcile” with Riverkeeper I not only fails

to provide a basis for granting certiorari (after all, the

Second Circuit is responsible for maintaining consis-

tency of its own precedents, and no judge of that court

favored rehearing en banc), but also relies on the

mistaken contention that EPA’s rejection of dry-cooling

technology in its Phase I Rule was supported by “cost-

benefit considerations.” PSEG Pet. 21 n.2. In fact, the

preamble to the Phase I Rule makes clear that “EPA

has not selected the best technology available on a

cost-benefit basis,” and that EPA instead based that

Phase I decision on “cost-effectiveness.” 66 Fed. Reg.

at 65,284, 65,309. EPA’s reliance on cost-effectiveness

in Phase I also rebuts Entergy’s assertion that the

court of appeals “made up” a “novel ‘cost-effectiveness’

test” in Riverkeeper II. Entergy Pet. at 25, 11.

B. Restoration Measures

In Riverkeeper I, the Second Circuit remanded the

Phase I Rule’s “restoration measures” provision as

“plainly inconsistent with the statute’s text and

Congress’s intent in passing the 1972 amendments,”

358 F.3d at 189, and no party sought this Court’s

review of that decision. In the decision below, a

21

different panel reaffirmed that holding and remanded

the Phase IT Rule’s nearly identical provision, stating:

“our holding in Riverkeeper I was and remains clear:

restoration measures contradict the unambiguous

language of section 316(b).” App. 43a. The court’s

straightforward application of section 316(b) to the

regulations at issue does not conflict with any other

decision and does not warrant this Court’s review.

Other than the Riverkeeper I and Riverkeeper II

decisions, no court of appeals has ever had occasion to

consider the issue of restoration under section 316(b).

The First Circuit’s 1979 Seacoast decision had nothing

to do with restoration measures, which were not at

issue in that case. Nor was the First Circuit there

asked to consider whether “adverse environmental

impact” under section 316(b) should be defined with

respect to fish populations, individual fish, or both.

While the court generally discussed the New

Hampshire power plant’s effect on individual fish as

well as populations, 597 F.2d at 309-11, that discuss-

ion has no bearing on how that court would have

viewed restoration measures.’ Seacoast thus is

manifestly not in conflict. Moreover, the rest of the

decisions petitioners cite did not consider section

316(b) at all, but involved completely different

statutes. See PSEG Pet. 30-31 (citing cases under the

National Environmental Policy Act, among others);

UWAG Pet. 34-36 (same).

’ Population effects were clearly relevant in that case under

CWA section 316(a), 33 U.S.C. § 1326(a), which sets forth a very

different standard than section 316(b), see Riverkeeper 11, App.

53a & n.27 (explaining that “wildlife levels” can be considered

under section 316(a), not section 316(b)).

22

C. Existing Facilities

Entergy alone contends that section 316(b) excludes

existing facilities, but fails to offer even a plausible

rationale for this Court’s review of that issue. No

court of appeals ~— and, indeed, to respondents’

knowledge, no federal or state tribunal or agency at

any level — has ever concluded that section 316(b)

applies only to new facilities. Five years after the

CWA was enacted, the Seventh Circuit upheld a

NPDES permit imposing section 316(b) requirements

on an existing facility. U.S. Steel Corp. v. Train, 556

F.2d 822, 850 (7th Cir. 1977) (holding that EPA’s

construction of section 316(b) “to apply to ali point

sources ... comports with its plain meaning”)

(emphasis added). That holding has stood for over 30

years and Entergy does not cite any decisional

authority that even suggests that the law is or should

be otherwise, despite EPA’s consistent application of

section 316(b) to existing facilities over the last 35

years.

As Entergy acknowledges, see Entergy Pet. 20 &

n.4, United States Steel not only held section 316(b)

applicable to existing facilities, but also expressly

affirmed EPA’s authority to use NPDES permits to

impose section 316(b) requirements. 556 F.2d at 850.

Of the two decisions Entergy contends are in conflict

on that point, neither even hinted that NPDES

permits could not be so used. In Virginia Electric &

Power Co. v. Costle “VEPC@”), 566 F.2d 446 (4th Cir.

1977), the Fourth Circuit held only that original

jurisdiction to review EPA’s section 316(b) regulations

lies in the court of appeals. Jd. at 447. The Fourth

Circuit’s statement that section 316(b) regulations are

23

“other limitations” under sections 301 and 306, 566

F.2d at 450, accords with the decision below because

NPDES permits include both effluent limitations and

other limitations.

The other case Entergy cites, Natural Resources

Defense Council v. EPA, 859 F.2d 156 (D.C. Cir. 1988),

had nothing to do with section 316(b). There, the court

held that EPA may not use NPDES permits to

implement an entirely different statute, the National

Environmental Policy Act (“NEPA”). Id. at 169. The

court did not imply that NPDES permits may not be

conditioned on compliance with relevant requirements

of the CWA itself.

Finally, Entergy’s additional request that this

Court grant certiorari to resolve a claimed conflict over

whether Chevron deference should be accorded

agencies’ interpretation of their own jurisdiction,

Entergy Pet. 22-25, does not warrant serious consider-

ation. Entergy did not raise this issue (or even

characterize EPA’s determination as “jurisdictional”)

below® and cannot now raise it here. See Clingman v.

Beaver, 544 U.S. 581, 598 (2005) (“We ordinarily do not

consider claims neither raised nor decided below.”).

Further, the court of appeals did not simply defer to

EPA’s interpretation on this point; it based its decision

on Chevron step one, holding “that section 316(b), on

its face, applies to existing facilities” and “Congress

intended the requirements of section 316(b) to apply in

® See Brief of Petitioner Entergy Corp., July 5, 2005, at 14-35

in Riverkeeper II, Dkt. No, 04-6692-ag(L). Moreover, none of the

other parties briefed the issue and the court of appeals did not

discuss it sua sponte.

24

tandem with the effluent limitations established

pursuant to sections 301 and 306.” Riverkeeper II,

App. 68a, 70a. The court’s reference to Chevron step

two was merely an alternative holding. Id. at 65a

(“[A]t the very least, the EPA permissibly interpreted

the statute...”). It is hard to imagine a case more

poorly suited for review of the jurisdictional deference

issue than this one, where the issue was not developed

below and is not outcome-determinative.

Il THE DECISION BELOW IS CORRECT

A. Cost Considerations

Correctly employing traditional tools of statutory

construction established by this Court, the Second

Circuit based its conclusion that cost-benefit analysis

would be inappropriate under section 316(b) on the

plain meaning of the statutory text. By requiring in

section 316(b) the “best technology available for

minimizing adverse environmental impact” (emphasis

added), Congress directed EPA to mandate the most

protective technology feasible. The court thus recog-

nized that section 316(b) leaves no room for weighing

of costs and benefits: “the language of section 316(b)

itself plainly indicates that facilities must adopt the

best technology available and that cost-benefit analysis

cannot be justified in light of Congress’s directive.”

Riverkeeper II, App. 21a.

Put another way, “the statute therefore precludes

cost-benefit analysis because ‘Congress itself defined

the basic relationship between costs and benefits.” Jd.

at 22a (quoting Am. Textile Mfrs. Inst., Inc. v.

Donovan, 452 U.S. 490, 509, (1981)). The Second

Circuit’s reading of the statute to exclude cost-benefit

25

analysis is fully consistent with this Court’s decision in

American Textile Manufacturers excluding cost-benefit

considerations under the Occupational Safety and

Heaith Act, as well as Whitman v. American Trucking

Ass’ns, 531 U.S. 457 (2001), where cost considerations

were precluded by the “most natural of readings” of the

Clean Air Act provision at issue there. Jd. at 465.

Petitioners mistakenly criticize the Second Circuit’s

reliance on American Textile, arguing that that “every

court of appeals that has addressed American Textile’s

impact on cost-benefit analysis has held that the case

is limited to whether cost-benefit analysis is required

by statute.” PSEG Pet. 26 (citing cases); see also

UWAG Pet. 24-25; Entergy Pet. 33-34. On the

contrary, the Fifth Circuit has recognized that the

“rather broad holding” of that case “rejected any

implication of cost-benefit analysis.” Am. Petroleum

Inst. v. EPA, 661 F.2d 340, 355 n.36 (5th Cir. 1981)

(emphasis added). As this Court observed in American

Textile, imposing a cost-benefit criterion onto a statute

meant to be governed by feasibility would be

“inconsistent” with the balance struck by Congress and

“would eviscerate” the congressional scheme. 452 U.S.

at 509, 513.9

The court of appeals was also correct to attach

significance to Congress’s failure to authorize cost-

benefit analysis expressly in section 316(b), in contrast

* Entergy disparages American Textile as a “pre-Chevron

decision.” Entergy Pet. 12. In fact, American Textile is a textbook

example of what later came to be called step one of Chevron; it

employed traditional tools of statutory analysis to discern the

intent of Congress.

26

to other environmental statutes — and, in particular,

other sections of the CWA — that explicitly call for cost-

benefit balancing.’*° Because Congress has repeatedly

demonstrated that it knows how to authorize cost-

benefit considerations when it so chooses, the absence

of any such authority in section 316(b) is evidence that

it did not intend such considerations to govern here.

“When Congress has intended that an agency engage

in cost-benefit analysis, it has clearly indicated such

intent on the face of the statute.” Am. Textile, 452

U.S. at 510; see also Whitman, 531 U.S. at 467 (“We

have therefore refused to find implicit in ambiguous

sections of the CAA an authorization to consider costs

that has elsewhere, and so often, been expressly

granted.”).

In giving weight to Congress’s conspicuous failure

to authorize cost-benefit analysis in section 316(b), the

Second Circuit did not, as PSEG asserts, hand down a

“new clear statement rule barring cost-benefit analysis

whenever a statute is silent on the issue.” PSEG Pet.

36. Rather, the court merely quoted this Court’s own

observation in American Textile about the significance

of Congress’s failure to authorize cost-benefit analysis

explicitly. See Riverkeeper II, App. 22a-23a (quoting

Am. Textile, 452 F.3d at 510). <A lower court’s

quotation from one of this Court’s decisions provides

no basis for review by the Court.

© See, e.g., 33 U.S.C. §§ 1312(b\2A), 1314(b)(1)(B),

1314(bX4B). Other statutes expressly authorizing cost-benefit

analysis include the Safe Drinking Water Act, 42 U.S.C. § 300g-

1(bM3KCXiXMIV), the fuel additive provision of the Clean Air Act,

42 U.S.C. § 7545(cK2)(B), the Outer Continental Shelf Lands Act,

43 U.S.C. § 1347(b), and the Flood Control Act, 33 U.S.C. § 701a.

27

B. Restoration Measures

With respect to restoration, the court of appeals

construed the specific language of section 316(b),

including the statutory mandates that EPA regulate

(1) the “location, design, construction, and capacity of

cooling water intake structures” (2) to “minimiz[e)”

their “adverse environmental impact,” and found that

EPA’s restoration provision contradicted the statute in

both respects. Off-site ecological improvement activi-

ties “have nothing to do with the location, design,

construction, or capacity of cooling water intake

structures.” App. 41a (quoting Riverkeeper I, 358

F.3d at 189). Moreover, attempts to “correct for the

adverse environmental impacts of impingement and

entrainment ... do not minimize those impacts in the

first place.” Id.

The court of appeals recognized that “a rule

permitting compliance with the statute through

restoration measures allows facilities to avoid adopting

any cooling water intake structure technology at all, in

contravention of the Act’s clear language as well as its

technology-forcing principle.” App. 44a; see also

Riverkeeper I, 358 F.3d at 190 (referring to “Congress’s

intent that the ‘design’ of intake structures be

‘' Petitioners argue that barrier nets and closed-cycle cooling

systems are no more a part of the “location,” “design,”

“construction,” or “capacity” of intake structures than restoration

measures. PSEG Pet. 30; UWAC Pet. 31-32. In fact, barrier nets

are part of the “design” of the intake because they are placed in

front of it to exclude fish. Similarly, a requirement, such as EPA’s

Phase I Rule, that intakes be designed to withdraw no :nore water

than a closed-cycle system, clearly regulates the “design” and

“capacity” of an intake structure.

28

regulated directly, based on the best technology

available”).

Petitioners argue that the word “reflect” in section

316(b) authorizes EPA to require no protective tech-

nology at intake structures if off-site ecological

improvement activities are successful. PSEG Pet. 30.

But if Congress had so intended it would not have

needed to use the words “location, design, construction,

and capacity of cooling water intake structures” at all.

It could have simply directed EPA to ensure suitable

populations of fish. Instead, consistent with the

principle that technology standards regulate pollution

at its source, Congress mandated best technology for

four specific aspects of cooling water intake structures.

Of course, “[s]tatutes must be interpreted, if possible,

to give each word some operative effect.” Walters v.

Metro. Educ. Enters., Inc., 519 U.S. 202, 209 (1997).

In addition, as the court observed in Riverkeeper I,

“EPA’s own findings reveal that restoration measures

are inconsistent with Congress’s intent.” 358 F.3d at

190. Since at least 1977, EPA has consistently defined

“adverse environmental impact” under section 316(b)

to include impingement and entrainment. In the

Phase II rulemaking, as in Phases I and III, EPA

“interpret[ed] adverse environmental impact as the

loss of aquatic organisms due to impingement and

entrainment.” 69 Fed. Reg at 41,612; see also 69 Fed.

Reg. 68,443, 68,473 (Nov. 24, 2004). Restoration

measures contradict EPA’s determination because they

do not minimize or even limit “how many organisms a

facility entrains or impinges.” 358 F.3d at 189.

Restoration measures therefore cannot satisfy section

29

316(b)’s command to “minimizele] adverse environ-

mental impact.”

Petitioners also vastly overstate the prior use of

restoration measures by power plants. In the briefing

below, industry was able to offer examples of only six

of more than 500 existing power plants that had ever

used restoration measures to compensate for fish kills,

and none of the cited permits allowed restoration as a

complete substitute for available intake structure

technology. Instead, restoration measures have only

been allowed as a partial, supplemental measure or

under regulatory authority other than section 316(b).””

Cc. Existing Facilities

As the court of appeals recognized, “section 316(b),

on its face, applies to existing facilities” and “the cross-

reference in section 316(b) to section 301 provides a

clear textual basis for that conclusion.” Riverkeeper II,

App. 68a-69a. Section 316(b) commands that “la]ny

standard” promulgated by EPA for point sources under

CWA section 301 “shall require” BTA for cooling water

intake structures. 33 U.S.C. § 1326(b). The

“standards” promulgated under section 301 are the

discharge standards for existing point sources. E.J. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 121

(1977) (“Section 301(b) defines the effluent limitations

that shall be achieved by existing point sources....”)

(emphasis added); see also Entergy Pet. 5 (Section

'? For example, the permitting agency clearly stated that the

restoration measures undertaken by PSEG at the Salem nuclear

plant, see PSEG Pet. 4-5, were not utilized to fulfill BTA

requirements under section 316(b). Joint Appendix 254.

30

301(e) requires EPA to establish limitations applicable

to “all point sources’ ... whether existing or new”).

The court of appeals also correctly found that by

applying section 316(b) to four particular aspects of

cooling water intake structures — their “location,

design, construction, and capacity” — Congress did not

signal an intention to exclude existing facilities, as an

existing facility's intake location, design, construction

and capacity can be regulated just as readily as a new

facility's. Riverkeeper II, App. 67a-68a & n.32. If

Congress had wanted to limit section 316(b)’s

application to new facilities, it could have done so

expressly, “which would have been a simple task to

do.” Id. at 68a.

Finally, the Second Circuit properly rejected

Entergy’s back-up argument that CWA section 402

does not authorize EPA to use NPDES permits to

impose section 316(b) requirements. Section 316(b)

states that standards applicable to point sources under

sections 301 and 306 shall include BTA requirements

for cooling-water intakes, and section 402(a)(1)(A), 33

U.S.C. § 1342(a)(1)(A), in turn provides that NPDES

permits shall require compliance with “all applicable

requirements under sections [301 and 306]” (emphasis

added). See Riverkeeper II, App. 68a-69a. The statute

thus provides ample authority for EPA to incorporate

the BTA requirements into NPDES permits, and

Entergy’s contrary argument would render section

316(b) meaningless by depriving EPA of a mechanism

for imposing its requirements.

CONCLUSION

The petitions for writ of certiorari should be denied.

31

Respectfully submitted,

P. KENT CORRELL REED W. SUPER

300 Park Avenue, Counsel of Record

17th Floor LAW OFFICE OF REED W. SUPER

New York, NY 10022 116 John Street, Suite 3100

(212) 475-3070 New York, NY 10038

(212) 791-1881

Counsel for Respondents Riverkeeper, Inc., et al.

February 29, 2008