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

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-588, 07-589 and 0 97

In the Supreme Court of the Anited States

ENTERGY CORPORATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

PSEG FOSSIL LLC, ET AL., PETITIONERS

RIVERKEEPER, INC., ET AL.

UTILITY WATER ACT GROUP, PETITIONER

RIVERKEEPER, INC., ET AL.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR RESPONDENTS

RIVERKEEPER, INC., ET AL.

EK DWARD LLOYD RICHARD J. LAZARUS *

Environmental Law Clinic 600 New Jersey Ave., N. W.

Columbia University Washington, DC 20001

School of Law (202) 662-9129

435 West 116” St.

New York, NY 10027 REED W. SUPER

(212) 854-4291 116 John Street

Suite 3100

P. KENT CORRELL New York, NY 10038

300 Park Ave., 17” Fl (212) 791-1881

New York, NY 10022

(212) 475-3070 * Counsel of Record

QUESTION PRESENTED

Whether Section 316(b) of the Clean Water Act, 33

U.S.C. § 1326(b), authorizes the Environmental

Protection Agency to compare costs with benefits in

determining the “best technology available for

minimizing adverse environmental impact” at cooling

water intake structures.

(1)

PARTIES TO THE PROCEEDING

In the United States Court of Appeals for the Second

Circuit, the petitioners were Riverkeeper, Inc., Natural

Resources Defense Council, Waterkeeper Alliance,

Soundkeeper, Inc., Scenic Hudson, Inc., Save the Bay —

People for Narrangansett 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,

Surfrider Foundation, State of Rhode Island, State of

Connecticut, State of Delaware, Commonwealth of

Massachusetts, State of New Jersey, State of New

York, Appalachian Power Co., Illinois Energy Ass’n,

Utility Water Act Group, Entergy Corp., and PSEG

Fossil LLC and PSEG Nuclear LLC. The respondents

were the United States Environmental Protection

Agency (EPA) and Stephen L. Johnson, in his official

capacity as Administrator of EPA. Appalachian Power

Co. and the Illinois Energy Ass’n were petitioners

before the Second Circuit and are not parties in the

proceedings now before this Court.

Pursuant to Supreme Court Rules 24.1 and 29.6,

there is nochange in the corporate disclosure statement

previously filed by Riverkeeper, Inc., Natural Resources

Defense Council, Waterkeeper Alliance, Soundkecper,

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

Narrangansett 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 kaw Foundation, or

Surfrider Foundation.

(11)

TABLE OF CONTENTS

Page

Pn coos peG cs ance ae hee Cee eae 1

a, | ED o's Wong's Sua lao 4a oe ws 1

1. The Use of Cooling Water in

the Production of Power ......... 1

2. Cooling Water Intake Structures

and their Adverse Environ-

WE ne wee buen ckecsses 3

3. The Clean Water Act ........... 5

4. EPAInitiallmplementation .... 14

B. Administrative and Judicial

Proceegings HOIOW .. ww wc cece 16

1. EPA Phase II Rulemaking ...... 16

2. Lower Court Decision .......... 17

ee ee bp ek se le eee 19

RS re ee ere ee Oe ee i oat 22

Section 316(b) of the Clean Water Act does not

authorize EPA to determine the “best

technology available for minimizing adverse

environmental impact” based on the agency’s

own comparison of the costs and benefits of

ee wa ee ea 22

(111)

A. The plain meaning of Section 316(b) makes

clear that comparing costs and benefits is

outside the scope of EPA’s authority in

determining the “best technology available

for minimizing adverse environmental

impact” of cooling water intake structures . 23

B. The statutory structure and context

confirm Section 316(b)’s plain meaning... ... 33

C. EPA’s implementation of Section 316(b)

does not defeat its plain meaning .......... 43

D_sResort to legislative history is unnecessary

in this case, but its examination reinforces

Section 316(b)’s plain meaning ........... 47

E. This Court must respect the policy choice

IRI AIR A AIS i ley a 50

SEES COPPELL Lo” 54

TABLE OF AUTHORITIES

Cases: Page

Ali v. Federal Bureau of Prisons, 128 S.

i I Pa 53

Allison Engine v. U.S. ex rel. Saunders,

SE i Ga Se EE aiticdetdnttininciabiienttbnicdian, 33

American Textile Manufacturers

Institute, Inc.v. Donovan, 452 U.S.

| ELAN APNE E He SHPO eL EP 28, 42

Appalachian Power Co. v. Train, 566 F.2d

Ne HUE iciccicabastveniicctninosncumabigamnaaien ae 15

Chemical Manufacturers Ass'n v. NRDC,

> Jit @) |: CR 32, 36

Chevron v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)...... 41, 43, 46

City of Chicago v. Environmental Defense

Fund, 511 U.S. 328 (1904) ............cesscses0es 42, 43

ConocoPhillips Co., et al. v. EPA, No. 06-

ee Se IED vniciiccicecansensactecoadediotaiee 16, 32

Davis v. Michigan Dept. of Treasury, 489

re NE We SE So 42

Dept. of Revenue, Kentucky v. Davis, 128

D.C .. GES i ncsiccsiesssdnmiaccntataneaeeeaus 28

Cases—Continued: Page

EI. du Pont de Nemours & Co. v. Train,

I ii 32, 53

EPA v. California State Water Resources

Control Board, 426 U.S. 200 (1976)....... 6, 7, 48

EPA v. National Crashed Stone, 449 U.S.

i aidentndiganneineietemstevebeuiseneeness 12, 35, 36

Gonzalez v. Oregon, 546 U.S. 243 (2006) ........... 37

Keene Corp. v. U.S., 508 U.S. 200 (1993)........... 33

Mason v. Hill, 110 Eng. Rep. 692 (18389) .............. 2

Milwaukee v. Illinois, 451 U.S. 304 (1981)........... 6

Motor Vehicles Manufacturers. Ass'n V.

State Farm, 463 U.S. 29 (1983) ................c.ee. 54

Natural Resources Defense Council, Inc. v.

EPA, 863 F.2d 1420 (9th Cir. 1988) ......0....... 15

Norfolk Southern Railway Co. v. Sorrell,

a cccclictvieneemnanoniisdinnsiiins 31

North Carolina v. EPA, 531 F.3d 896 (D.C.

eR Os 53

Riverkeeper, Inc. v. EPA, 358 F.3d 174

IE ER SR ee 15, 16

Russello v. U.S., 464 U.S. 15 (1983) ..............0.0.. 33

Cases—Continued: Page

Sandusky Portland Cement Co. v. Dixon

Pure Ice Co., 251 F. 506 (7th Cir. 1918)

edneudecducceusssqnensedieatadaeembdndedrdsnecanicesnousssetiinesesewene’ 2

Seacoast Anti-Pollution League v. Costle,

507 F.2d S06 (lat Cir. 1979) ........ceccecceccceeeees. 45

Union Electric Co. v. EPA, 427 U.S. 246

NT licidicaunsiiniesdedstssnssiatssebuniaiuaiiieisuiainbinispenien 42

Whitman v. American Trucking Ass ‘ns,

et Se ereeenee 37, 42

Statutes and Regulations

Clean Water Act

Be Ns te Nc aiicocinscishiniolscinesasciceiaicbiceediaamiae 38

I a isiciicsinerrnciinasiesictiinsaninaniansa 39

Sa ae ID iinttnsnietnvntnsidtonenecioasniabaiidaatie 39

BN Fe II iicteheetnccciioniciccensneciinneiiat 39

I Ae IE vertsetiteenetnansccininepnanieeiiliiis 39

SB TEFL, B ABR AAI vnecccitscccesccscceccesi 34, 37

33 U.S.C. § 1314(b)(2)(B) «0... eee 35, 36, 37

33 U.S.C. § 1LDIAMEABDD ..........0000serressesesecsesss 39

33 U.S.C. § 132G4@).................. 14, 21, 38, 39, 49

a Brie Oe Be iinihescccisncincsinitetasincccnias passim

Vlll

Statutes and Regulations—Continued: Page

33 U.S.C. § 1342(a)(1)(B) ..........ccereereeeees 15, 46

40 C.F.R.

ip Inchon sciatica nleiainidebinhiaiianaaidannieitenamneniaiadiall 46

ie UII ssspehssnsisiihiceicinhaabaabaidebaiigabadsedainiaanaanedatada 16

ITI 5 icesilninbidhtniebaitaaaanamadpuananailla 16

IED 1 ssicniontinvinnbenlinmsatinesanitesediehaihanain 16

eT sacs dencemneidinalibuadeiallbdatieilia 17

a eaaabaaienen 16

RD vccciscscicenittnnnsmcsnniacennmoniiivnsats 32

IEEE setecsessticcninssinilenidcininsiennsadinaiinienion 33

Federal Water Pollution Control Act

Amendments of 1972, Pub. L. 92-500

A, NE scccinsstehnnstsiitncshiibinsinecinniwitinnicnnccnsisinilies 6

§ 301(b), 86 Stat. 844-45 (1972)... 7

Fe § FS LS |. | anna 34, 37

§ 302(b)(2), 86 Stat. 846 (1972).......00...0. ee. 34

§ 304(b), 86 Stat. 851 (1972)...............ccccceesoese. 7

§ 306, 86 Stat. 854-56 (19732) ..............ccssccrcceses 7

Miscellaneous

LL; a 5

41 Fed. Reg. (1976):

“EAMES Pee eR 15, 25, 44

66 Fed. Reg. (2001)

i rk te re 16

RELATES Se vee EO Te nea DTT ENE TT AOE 9 46

TF, BI Ga acc scnsiccccnincnsicnceresvconsee 16

A Possible Basis for Agreement on

hinted siden tindoeiseesibbanjeaiiabils 14

Cass R. Sunstein, 7he Cost-Benefit State-

The Future of Regulatory Protection

Pe civiciaticosccacencneeiansedenote ELL DR 50

Cass R. Sunstein, Which Risks First?

gg a Rne eno 51

David M. Driesen, Distributing the Costs

of Environmental, Health, and Safety

Protection: The Feasibility Principle,

Cost-Benefit Analysis, and Regulatory

Reform, 32 B.C. Envtl. Aff. L. Rev. 1

SINE sisesdicedeteanadtndodumiecnteciudiianaee io 50

Miscellaneous—Continued: Page

Environmental Effects of Producing

Electric Power, Hearings before the

Joint Committee on Atomic Energy,

i arrcriccesensinnntsvnrerenennios 5

Eric A. Posner, Controlling Agencies with

Cost-Benefit Analysis: A Positive

Political Theory Perspective, 68 U. Chi.

I a cca 51

Frank Ackerman & Lisa Heinzerling,

Pricing the Priceless: Cost-Benetit

Analysis of Environmental Protection,

150 U. Pa. L. Rev. 1553 (2002) ...................... 50

H.R. Rep. No. 112 104th Cong., lst Sess.

RIE sch 00, oc UR OO eT 41

Henry C. Meyer, Jr., Steam Power Plants:

Their Design and Construction (3d ed.

A RATERS SRE ELS Es SP OE 2

Hon. Stephen Breyer, Breaking the

Vicious Circle — Toward Effective Risk

lilies 51

House Proposal on Thermal Discharges

(offered 9/14), § 316€e)(1) 8&2) 2... ccecce cece eee 13

Miscellaneous—-Continued: Page

Legislative History of the Water Pollution

Control Act Amendments of 1972

(Committee Print compiled for the

Senate Committee on Public Works by

the Library of Congress), Ser. No. 93-1

(1973)

Vol. 1

86 Stat. 876, 1 Leg. Hist. 63..........0..cccccsees 14

H.R. 11896, § 301(b)(2)(A), 1 Leg.

I nadine 10

H.R. 11896, § 304(b)(1)(B), 1 Leg.

Ss MEE Suactetbaciducuniarsnisntestuibanccsccde 9

H.R. 11896, § 304(b)(2)(B), 1 Leg.

PRE Ra te NN Arad ER Sees SO Y

H.R. 11896, § 316(d), 1 Leg. Hist.

IIIT sniitenpuuiigticaneiecsinntiaina tens 13, 49

H.R. Rep. No. 92-911, 1 Leg. Ast.

House Debate on H.R. 11896, 1 Leg.

Hirst. 350-51, 359-60 (Remarks

of Reps. Blatnik and Jones) .................. 6

xli

Miscellaneous—Continued: Page

Pub. L. 92-500 § 502(6), 1 Leg. Hist.

SSvaibistebilichioeslbeiibindehidbaahigpiiiatainihalaiesiniinietibiibinnnie 14

Statement of Sen. Muskie, 1 Leg.

TIE” CIID :cinnsisisaianacitiniasieginiebunilesiieeteiadion 7, 12, 36

Veto Message 1 Leg. Ast. 137............ 11-12

Vol. 2

Hearings on H.R. 11896, 2 Leg.

la alae callie 9

S. 2770, § 306(b)(1MC), 2 Leg. Hist.

ER ST ee ede One 9

S. Rep. No. 92-414 (1971), 2 Leg.

a 6, 8,9

Legislative History of the Clean Water

Act of 1977 — A Continuation of the

Legislative History of the Federal

Water Pollution Control Act

Amendments of 1972(Committee

Print compiled for the Senate

Committee on Environment and

Public Works by the Library of

Congress), Ser. No. 95-14 (1975)

xill

Miscellaneous Continued: Page

Conference Report, 3 Leg. Ast. 258.............. 40

Statement of Senate Manager Senator

PUOEED, 3 Lg. FEIIE. 4B 7 o.ccsccccsccccscesesseseees 40

1 Louis C. Hunter, A Aistory of Industrial

Power in the United States, 1780-1930

ER A A oa ee ee 1

2 Louis C. Hunter, A History of Industrial

Power tn the United States, 1780-1930

ay TIE cccadiiicsisibasebiamendncaeiaiiaiatinahidinsiibplebaphdemneniin 1,2

M. M. Samuels, Power Unleashed: The

Story of Electricity and Power (1943) ............. 2

Memorandum from Leon Billings to

Senator Muskie on “Status of the

Water Pollution Conference” (July 11,

ERR SR Rea aRre are RN ne 13

Memorandum from Leon G. Billings

(Staff Director) to Senate Conferees,

Re- Options to the House Proposal on

ET IY OR, BI ccnseieinescndvecienencosssaneten 11

Notes on 9/13 and 9/14 Conference

TES EE EIT Lo. Ze SET OE CT 14

Office of Science and Technology of the

Executive Office of the President,

Considerations Affecting Steam Power

Plant Site Selection (1968) ..........0.000.00cccccceeeeee 6

X1V

Miscellaneous—Continued: Page

Paul Milazzo, Unlikely Environmentalists

— Congress and Clean Water, 1945-

ti a a 7,9

Richard L. Revesz & Michael A.

Livermore, Retaking Rationality —

How Cost-Benefit Analysis Can Better

Protect the Environment and Our

FRESE EI ate 50, 52

Robert H. Frank & Cass R.. Sunstein,

Cost-Benefit Analysis and Relative

Position, 68 U. Chi. L. Rev. 323 (Z001)......... 51

Sidney A. Shapiro & Christopher H.

Schroeder, Beyond Cost-Benefit

Analysis: A Pragmatic Reorientation,

32 Harv. Envtl. L. Rev. 433 (2008)................ 50

The American Heritage Dictionary of the

English Language (4th ed. 2000)....... 24, 25, 26

The Oxford English Dictionary (2d ed.

as EC PEG eae EAS 5 Se eR 24, 25

The Scribner-Bantam English Dictionary

SUNT cishistivteis orehalinstadas teihaltadslasinidgebiaialadiiandinipanpeicanation 25

Thermal Pollution, Hearings before the

Subcomm. on Air and Water of the

Senate Comm. on Public Works, 90th

Ee NN he EE ces cticerislbadanctansinienssomeveicornies 5

Miscellaneous—Continued: Page

U.S. Department of Energy, Addressing

the Critical Link Between Fossil

Energy and Water (2005).............2.c2.00s00000 3,4

Webster's Third New International

ps 5 | ET EEE 24, 25, 26

BRIEF FOR RESPONDENTS

RIVERKEEPER, INC., ET AL.

STATEMENT

This Court granted certiorari to consider “whether

Section 316(b) of the Clean Water Act authorizes the

Environmental Protection Agency tocompare costs with

benefits in determining the ‘best technology available

for minimizing adverse environmental impact’ at cooling

water intake structures.” The statutory language of

Section 316(b) directly answers that question by

denying EPA the authority the Agency claims to

compare costs with benefits. The judgment of the court

of appeals should be affirmed.

A. Background

:: The Use of Cooling Water in the

Production of Power

The federal regulations challenged in this case

apply to power plant cooling water intake structures

that withdraw more than 50 million gallons of cooling

water per day. Water has long served a central role in

the production of power because of its remarkable

physical and chemical characteristics.

During the nation’s early years, water mills

exploited the energy potential within water’s liquid flow.

1 Louis C. Hunter, A Aivstory of Industrial Power in the

United States 1780-19380 1-3 (1979). With the

introduction of the steam engine in the middle of the

eighteenth century, however, water became a power

source based on its ability to convert from a liquid to a

gas and then to cool. 2 Louis C. Hunter, A AH7storv of

(1)

Industrial Power in the United States 1780-1930 2

(1985).

A steam engine produces power by raising the

temperature of liquid water sufficiently high to convert

it to a gas and then by using the pressure generated by

the gas in aconfined space to produce mechanical power

— for instance, to drive a piston. The first steam engines

did not utilize water’s cooling capacity, but as early as

1698, a newly-designed steam engine was able to

produce greater power by spraying cooling water to

condense the steam back to liquid water — the resulting

vacuum generated further pressure capable of

producing more power. See 2 Hunter, A History of

Industrial Power, supra, at 1-2, 5-7, 671; see also Henry

C. Meyer, Jr., Steam Power Plants: Therr Design and

Construction, 142-43 (3d ed. 1912). ‘The increased

demand by steam engines for water inevitably

generated conflicts between competing users of

waterways. See Mason v. Hill, 110 Eng. Rep. 692 (1833);

Sandusky Portland Cement Co. v. Dixon Pure Ice Co.,

251 F. 506 (7th Cir. 1918).

The steam engine’s design remains basically the

same today, whether the heat necessary to convert

water from a liquid to a gas is produced by fossil fuel

combustion or nuclear fission and whether the power

drives a piston or a turbine to produce electricity. See

M. M. Samuels, Power Unleashed: The Story of

Electricity and Power, 222-24 (1943). What has

dramatically changed is the physical scale of power

plant operations and, accordingly, their environmental

impact. Today, atypical 500 megawatt coal-fired power

plant uses approximately 12 million gallons of cooling

water per Aour, or approximately 300 million gallons

per day. For larger power plants, cooling water

consumption can be greater than three billion gallons

per day. In 2000, thermoelectric power plants used 136

billion gallons of fresh water per day, which represents

about 39 percent of the total withdrawal of fresh water

in the United States. See U.S. Department of Energy,

Addressing the Critical Link Between Fossil Energy and

Water, 1-4 (2005). Thermoelectric power is also

currently the single largest source ot withdrawal of total

water (fresh water and saline water) in the nation,

accounting for 47 percent of that total. Pet. App. 170a.'

The power plants covered just by the Phase II rule at

issue in this case “withdraw more than 214 billion

gallons of cooling water a day from waters of the United

States.” Jd. at 169a-170a.

2. Cooling Water Intake Structures

and their Adverse Environmental

Impact

Because cooling water intake structures withdraw

such extraordinarily large amounts of water, their

withdrawals necessarily affect the full spectrum of

organisms in the aquatic ecosystem at all life stages.

Aquatic organisms are drawn into cooling water systems

where they are either “impinged” onto components of

the intake structure or “entrained” within the cooling

water system itself. Pet. App. 170a. Impingement

occurs when organisms are trapped against intake

screens by the force of the water being withdrawn into

the structure. /d. at 170a-17la. Entrainment happens

when aquatic organisms are instead drawn through the

cooling system. Entrained organisms are subject to

severe mechanical, thermal, and toxic stresses. /d. at

17la.

' Citations to the Pet. App. refer to the appendix filed in No. 07-

D888.

As EPA has acknowledged, it is impossible to

quantify with any precision the nature and extent of the

adverse environmental impacts caused by the

withdrawal of approximately 80 trillion gallons of water

per year by cooling water intake structures. EPA has

nonetheless estimated, looking only to fish and shellfish

mortality caused by entrainment and impingement, that

the cooling water intake structures covered just by the

Phase II regulations at issue in this case cause the

death of more than 3.4 billion fish and shellfish each

year, expressed in terms of “age 1 equivalents.”* Jd. at

168a-174a; see National Wildlife Federation Amicus Br.

1.A.1.

The harm caused by a cooling water intake

structure is most directly related to the amount of water

the structure withdraws, which largely turns on the

type of cooling system the facility utilizes. There are

generally two types of cooling systems: once-through

cooling systems and closed-cycle cooling systems (wet or

dry). As its name suggests, a once-through system

circulates the water through a condenser and then

returns the now-heated water to the water body from

which it was withdrawn. U.S. DOE, Addressing the

Critical Link, supra, at 3-4. A wet closed-cycle cooling

system uses wet cooling towers, ponds, or lakes to

dissipate the heat from the cooling water to the

atmosphere. /d. A dry cooling system uses air to cool

the exhaust steam. /@. The water use requirements of

these cooling systems vary significantly. On average, a

once-through system requires 37.7 gallons of water per

kilowatt hour of power produced. A wet closed-cycle

“See Pet. App. 172a (“age 1 equivalents is an accepted method for

converting losses of all life stages into individuals.of an equivalen¢

age ).

cooling system, by contrast, uses only 1.2 gallons per

kilowatt hour produced. Jd.

3. The Clean Water Act®

a. The first reported congressional concern

regarding the environmental harm from power plants’

accelerating use of cooling water was in the 1960s. In

1967, Senator Warren Magnuson warncd that “by 1980

thermal power plants throughout the Nation will

require an amount of cooling water greatly in excess of

the average flow of the mighty Mississippi at St. Louis.”

113 Cong. Rec. 30129 (1967). Congress held extensive

hearings in 1968 and 1969 on the effects of waste heat

produced by industrial facilities, focusing on the adverse

environmental effects of thermal discharges, but also

considering the impact of cooling water intake.* A 1968

White House report described how “the large volumes of

water withdrawn in once-through cooling processes” can

* This brief offers an extensive discussion of the legislative

background leading up to Section 316(b)’s congressional enactment.

None is necessary for this Court’s resolution of the question

presented, which is answered by the statutory language’s plain

meaning without any resort to the legislative history. The

legislative history is entirely in keeping with that plain meaning

(see pp. 47-50, infra), and is provided only for the purpose of

refuting petitioners’ mischaracterizations of it.

“See Thermai Pollution, Hearings before the Subcomm. on Alrand

Water of the Senate Comm. on Public Works, 90th Cong., pts 1-4

(1968); id. at 1 (statement of Sen. Muskie) (“[bly the end of the next

decade, approximately one-sixth of the total fresh-water runoff in

the United States will be required for cooling and condensing

purposes.”); zd. at 98-102, 104, 112-13, 137-38, 143 (testimony on

intake impact on aquatic organisms): Environmental Effects of

Producing Electric Power, Hearings before the Joint Committee on

Atomic Energy, 91st Cong., pt. 1, 341-45, 375-76 (1969) (intake

impact).

have “as much or more effect on aquatic life in a stream

than the waste discharges on which control measures

are required.” See Office of Science and Technology of

the Executive Office of the President, Considerations

Affecting Steam Power Plant Site Selection, 46 (1968).

b. In 1972, “Congress, recognizing that ‘the Federal

water pollution control program * * * hald] been

inadequate in every vital aspect * * *,’ passed the

Federal Water Pollution Control Act Amendments of

1972, Pub. L. 92-500, 86 Stat. 816,” now referred to as

the Clean Water Act. Mi/waukee v. Illinois, 451 U.S.

304, 310 (1981), quoting S. Rep. No. 92-414, 7 (1971), 2

Legislative History of the Water Pollution Control Act

Amendments of 1972, 1452 (Committee Print compiled

for the Senate Committee on Public Works by the

Library of Congress), Ser. No. 93-1 (1973) (hereinafter

“2 Leg. Hist.”). The 1972 “Amendments were viewed by

Congress as a ‘total restructuring’ and ‘complete

rewriting’ of the existing water pollution legislation.”

Id. at 317, quoting House Debate on H.R. 11896, 1 Leg.

Hist. 350-51, 359-60 (remarks of Reps. Blatnik and

Jones).

The single most important regulatory reform

achieved by the 1972 Act was the seemingly paradoxical

notion that the nation’s ambitious water quality goals

could best be achieved if they were no longer tied to

compliance with water quality standards. Congress

concluded that past efforts to maintain such a

regulatory link had failed because the science of water

ecology was too complex to measure the “tolerable

effects” with the precision necessary to have water

quality standards serve as the primary touchstone for

determining the appropriate level of control. EVA v.

California State Water Resources Control Board, 426

U.S. 200, 202-03 (1976).

The 1972 Act, accordingly, fundamentally

restructured the law to rely in the first instance on the

imposition of a series of categorically-determined

technology-based standards that did not themselves

depend on site-specific showings of impact of particular

activities on water quality. First promoted by Senator

Howard Baker and then embraced by Senator Edmund

Muskie,”® these technology-based standards were

designed to achieve the maximum reduction in activities

that degraded water quality, by focusing on the extent

to which certain technology was, depending on the type

of source or pollutant, “practicable,” “achievable,”

“available” or “demonstrated.” See Pub. L. 92-500, §§

301(b), 304(b), 306, 86 Stat. 844-45, 851, 854-56 (1972).

The new Act retained the prior approach of seeking

compliance with state water quality standards, but only

as a supplement to the controls first imposed by the

technology-based standards. See id. § 301(b)(1)(C):

EPA v. California State Water Resources Control Board,

426 U.S. at 205 n.12.

c. Congress accomplished this major reform only

after the House and Senate first passed sharply

different bills and met 39 times over six months to reach

an agreement. Statement of Sen. Muskie, 1 Leg. Hrst.

161. Acentral issue splitting the two chambers was the

extent to which Congress should delegate to EPA the

authority to consider and compare costs with benefits in

determining the technology-based standards.

The Senate favored a technology-based approach

that did not depend on EPA's assessment of the

associated water quality benefits of such control,

* See Paul Milazzo, Unlikely Environmentalists — Congress and

Clean Water, 1945-1972, 214, 220-21 (2006).

including a comparison of control costs to benefits. The

Senate report accompanying its bill left no question why

such a fundamental shift was necessary: “the great

difficulty associated with establishing reliable and

enforceable precise effluent limitations on the basis ofa

given stream quality. Water quality standards, in

addition to their deficiencies in relying on the

assimilative capacity of receiving waters, often cannot

be translated into effluent limitations * * * because of

the imprecision of models for water quality and the

effects of effluents in most waters.” S. Rep. 92-414, 2

Leg. Hist. 1426. “With effluent limits, the

Administrator can require the best control technology;

he need not search for a precise link between pollution

and water quality.” Jd.

The Senate version of the new law required existing

point sources of pollution to comply with two phases of

technology-based controls that would become

increasingly stringent over time: “In Phase I, to be

implemented by 1976, all industrial pollution sources

must apply the best practicable technology” (““BPT”) and

“liln Phase II, to be implemented by 1981, * * *

industries will be required to apply, where the goal of

no-discharge cannot be attained, the best available

technology” (“BAT”). S. Rep. 92-414, 2 Leg. Hist. 1426.

Although for each, the “costs” of control was a factor to

be considered in determining the relevant technology-

based standard, whether BPT or BAT, there was no

allowance for any weighing by EPA of the costs and

benefits, consistent with the Senate’s decision to remove

any linkage between the technology-based standards

and a showing of water quality impacts. By contrast, for

new point sources, the applicable technology-based

standard in the Senate bill did allow for an exemption

from the categorically-determined technology-based best

available control technology standard based on facility-

specific weighing of costs and benefits, but only for those

facilities that became subject to the standard for “new”

sources because of a modification of the facilities. S.

Rep. 92-414, 2 Leg. Hist. 1475, 1477: see S. 2770, §

306(b)(1)(C), 2 Leg. Hist. 1626-27.

d. The House and the Administration immediately

criticized the Senate for its rejection of water quality-

based regulation and its related elimination of cost-

benefit analysis from almost all aspects of technology-

based standirds. The EPA Administrator complained

that because the Senate bill “eliminates over a period of

time the concept of water quality standards and instead

depends completely on effluent limitations based on the

best available technology or better. * * * Thus, the social

benefit we are all seeking — high quality water — is

eliminated from the equation and technology is

substituted in its place.” Hearings on H.R. 11896, 2 Leg.

Hist. 1183; see jd. at 1132 (testimony of Russell Train,

Chairman, Council on Environmental Quality)

(criticizing “an across-the-board treatment requirement

unrelated to the benefits to be derived”). The

Administration produced a cost-benefit analysis that

claimed that the costs of the Senate version were

exorbitantly high compared to its benefits. Milazzo,

Unlikelv Environmentalists, supra, at 227-28.

The House-passed bill sharply departed from the

Senate version on the role of cost-benefit analysis. For

determining both BPT and BAT, the House bill

expressly instructed EPA to consider “the cost and the

economic, social, and environmental impacts of

achieving such effluent reduction.” H.R. Rep. No. 92-

911, 1 Leg. Hist. 794; see H.R. 11896, § 304(bJULXB) &

(b)(2)(B), 1 Leg. /iist. 980-81. The House bill also

declined to make the Phase II BAT requirement

applicable absent subsequent congressional action. It

first required the National Academy of Sciences to

complete a cost-benefit analysis. H.R. Rep. No. 92-911,

1 Leg. Hist. 789; see H.R. 11896, § 301(b)(2)(A), 1 Leg.

Hist. 963-64. Finally, the House version provided that

technology-based provisions for new sources would not

apply to modified sources in the absence of a

“reasonable relationship” of costs to benefits. Jd. at 798.

e. The Conference Committee met over six months

before reaching agreement.® The two chambers split

negotiations on the precise wording of the bill’s language,

especially regarding technology-based standards and the proper

role of cost-benefit analysis, are all available in the National

Archives and located in a series of “Cartons” labeled “Accession No.

46-75-003, Senate Public Works Committee, Subcommittee on

Environmental Pollution, Federal Water Pollution Legislation

Files.” Within each box there are “Folders” with topic labels and

often smaller individual “Files” with topic labels. Only because the

more detailed history documented by the National Archives

provides a further layer of historical detail potentially of interest

to some members of the Court, this brief includes references to that

documentation. See notes 7-8, infra. The brief refers to six

documents located in four different committee files: (1) a file

labeled “316,” containing drafts of Section 316, in a Folder labeled

“Conference Committee Language” contained in Carton No. 2; (2)

a file containing correspondence on “Phase I and Phase II,” ina

Folder labeled “Conference Committee Memos” in Carton No. 2; (3)

files labeled “9/13” and “9/14,” containing notes on the individual

sessions of the House and Senate conferees held on September 13th

and 14th, 1972, in a Folder labeled “House-Senate Conference

Committee 1972 Water Pollution Bill,” in Carton No. 2; and (4) a

file leveled “General,” containing internal committee memoranda

to Senator Muskie and to the Senate Conferees in a folder labeled

“House Senate Conference Committee 1972 Water Pollution Bill”

in Carton No. 2. References to documents within this archival

material will hereinafter be referred to by the name of the

document, file name and the Natronal Archives (e.g., “A Possible

fundamentally on the central policy issue of whether the

degree of regulation should be defined, as the Senate

preferred, by technology-based standards that did not

turn on an assessment of water quality impacts and

cost-benefit analysis, or the House version, which did.’

In the fall of 1972, the conferees reached agreement

on a bill that each chamber passed by overwhelming

margins, and then Congress overrode a veto triggered

by the President’s view that the bill’s “unconscionable

$24 billion price tag” far outstripped its benefits. Veto

Basis for Agreement on Thermal Pollution, ‘316 File’ Nat. Arch.”).

For the Court’s convenience, we are filing a motion to lodge copies

of the National Archives materials cited.

’ The internal committee documents in the National Archives show

a persistent effort by some House conferees to allow EPA to

compare costs and benefits both in the establishment of technology-

based standards and in allowing individual facilities to seek water

quality variances. And, they also demonstrate an equally

persistent effort, mostly by Senate conferees, to resist both efforts

on the ground that such provisions would invariably invite back

into the regulatory equation the very consideration of water quality

impacts they believed would undermine the statute's ability to

achieve its goals. See, e.g., Memorandum from Leon G. Billings

{Staff Director] to Senate Conferees, Re: Options to the House

Proposal on Title Ill, 2 (June 15, 1972) (“Phase I and II File” Nat.

Arch.) (“The staff believes that the House proposal which would

require the application of new source performance standards to

existing sources by 1985 unless social and economic and

environmental cost outweighed social, economic and environmental

benefits would be disastrous. * * * [T]here is no way to adequately

quantify the social and economic and environmental benefits of

pollution control in relation to the cost associated with that

pollution control.”); id. at 3 (“The House proposal is directly

contrary to the Senate concept in that it would require that * * * no

controls could be applied unless there were quantifiable benefits to

be achieved. This is nothing more or less than an extension of

water quality standards.”).

Message, 1 Leg. Hist. 137. The new law embraced the

technology-based approach favored by the Senate with

a two-phase approach for existing industrial point

sources of pullution and a separate standard for new

sources, but with a few discrete concessions to the

House.

The legislation enacted allowed for some “limited

cost-benefit analysis” in BPT’s determination for Phase

I, but not for BAT in Phase II. Statement of Sen.

Muskie, 1 Leg. Hist. 170. “In assessing the BPT the

Administrator is to consider ‘the total cost of application

of technology in relation to the effluent reduction

benefits to be achieved from such application.” EPA v.

National Crushed Stone, 449 U.S. 64, 70 (1980). But “in

assessing BAT total cost is no longer to be considered in

comparison to effluent reduction benefits.” /d. at 71; see

id. at 71 n.10.

f. Congressional consideration of Section 316,

including Section 316(b)’s provision regarding a

technology-based standard applicable to cooling water

intake structures, reflects this same legislative debate

concerning the extent to which, u at all, Congress

should authorize EPA to compare costs and benefits in

regulating activities that adversely affect the aquatic

environment. The House and the Senate were, at the

outset, focusing largely on the impact of therma/

discharges, until the House introduced the related issue

of cooling water intake that had been discussed in the

prior legislative hearings.

On the discharge issue, the Senate bill favored

subjecting the discharge of heat to the generally

applicable technology-based standards for existing and

new sources. Statement of Sen. Muskie, 1 Leg. Ast.

175. The House bill, however, considered “heat”

appropriate for regulation based on a cost-benefit

analysis. The House bill, accordingly, instructed EPA to

exempt a thermal discharge from regulation upon a

determination by EPA that “the economic and social

costs of implementing the regulations at a point source

bear no reasonable relationship to the economic and

social benefits (including water quality objectives) to be

attained.” H.R. 11896, § 316(d), 1 Leg. Hist. 1043-44.

The House also called for consideration of “alternative

methods” for control, including “cooling devices,” “once-

through cooling,’ and “evaporative cooling towers,” and

instructed EPA to take into account “their relative social

and economic costs and benefits,” and “their relative

impact on the environment, considering not only water

quality but also * * * conservation of natural resources.”

Td. § 316(b).

The House and Senate conferees met over the

summer on Section 316 without reaching agreement,

but then reached a compromise agreement by drawing

a distinction between the regulation of thermal

discharges and cooling water intake.” Both would be

* The stalemate continued over the summer (see Memorandum

from Leon Billings to Senator Muskie on “Status of the Water

Pollution Conference, 2-3 (July 11, 1972) (“General File” Nat.

Arch.)). On September 13th and 14th, the conferees broke the

logjam by representatives within each chamher suggesting a water-

quality approach for thermal discharge and a technology-based

approach for cooling water intake. Under the House proposal,

regulation of thermal discharges would have been based on water

quality standards, and “cooling water intake facilities” would be

subject to a two-phase technology-based standard approach, with

a July 1, 1977, deadline for compliance with “best practicable

control technology” and a July 1, 1983 deadline for application of

“best available demonstrated technology.” See House Proposal on

Thermal Discharges (offered 9/ 14), § 316(e)(1)&(2), (“316 File” Nat.

Arch.) Among the Senate conferees, Senator Jennings Randolph

subject to technology-based standards, with “heat”

expressly defined as a “pollutant” and thereby

triggering the BPT and BAT technology-based

standards (see § 502(6), 1 Leg. Hist. 73), but a

biologically-based variance — expressed in terms of

protection of fish populations — would be made available

for thermal discharges under Section 316(a). See 86

Stat. 876, 1 Leg. Hist. 63. Section 316(b) set forth a

distinct statutory approach to cooling water intake. It

simply announced a technology-based standard for the

express purpose of “minimizing adverse environmental

impact” without any allowance for the kind of relaxing

of a technology-based standard contemplated by Section

316(a). Jd.

4. EPA Initial Implementation

a. EPA first promulgated Section 316(b)

regulations in 1976. 41 Fed. Reg. 17387 (J.A. 38). The

Agency then refuted any claim of authority to compare

costs and benefits in determining the “best technology

available” (“BTA”) required for cooling water intake

structures under Section 316(b). Rejecting an industry

recommendation, EPA explained not only that “[nJo

comparison of monetary costs with the social benefits of

minimizing adverse environmental impacts * * * is

proposed a similarly-bifurcated approach tothermal discharge and

cooling water intake, except that it provided that “[t]he design and

construction of cooling water intake structures would have to be in

accordance with the best available technology for minimizing

environmental effects.” See A Possible Basis for Agreement on

Thermal Pollution (“316 File” Nat. Arch.); Notes on 9/13 and 9/14

Conference Meetings ("9/13 File” & “9/14 File” Nat. Arch.)

(describing Senator Randolph's proposal at “9/13 File,” p. 3). The

documents within the relevant files belie the Solicitor General's

assumption (Br 11, 23, 34) that Section 316(b) was a mere

“afterthought.”

required by the terms of the Act” (7d. at 17388), but also

indicated that the Agency had no discretion to do so,

because “[t]he statute directs the Agency to insure that

enumerated aspects of cooling water intake structures

reflect the best technology available for minimizing

adverse environmental effects” and, consequently, “the

effort must be to select the most effective means of

minimizing (.e., ‘reducing to the smallest possible

amount or degree’) those adverse effects.” Jd. (emphases

supplied).

b. The Fourth Circuit in Appalachian Power Co. v.

Train, 566 F.2d 451 (1977) invalidated EPA’s Section

316(b) regulations on procedural grounds. After more

than 15 years of inaction, EPA entered into a consent

decree to promulgate new regulations, which the

Agency ultimately accomplished in three specific

phases:’ (1) Phase I for cooling water intake structures

at new facilities that withdraw daily at least two million

gallons of water; (2) Phase II for intakes at larger

existing power plants: and (3) Phase III for structures

at new offshore and coastal oil and gas extraction

facilities, existing manufacturing facilities, and smaller

existing power plants. Pet. App. 6a. In the absence of

applicable Section 316(b) regulations in the interim

years, cooling water intake standards have been

relegated to ad hoc determination by individual permit

writers — typically state agencies, exercising “best

professional judgment” pursuant to 33 USC. §

1342(a)(1)(B). See Natural Resources Defense Council,

Inc. v. EPA, 863 F.2d 1420, 1424 (9th Cir. 1988).

c. In 2001, EPA promulgated its Phase |

* These “phases” are entirely distinct from the two “phases”

Congress contemplated for technology-based standards under

Sections 301 and 304. See p. 12. supra.

regulations, which were mostly upheld in Aiverkeeper,

Inc. v. EPA, 358 F.3d 174 (2nd Cir. 2004). See 66 Fed.

Reg. 65256 (2001). EPA promulgated its Phase II

regulations, challenged here, in 2004. See Pet. App.

122a-593a. The Agency promulgated its Phase III

regulations in 2006 (see 71 Fed. Reg. 35006), and a

challenge to that rulemaking is currently pending. See

ConocoPhillips Co. v. EPA, No. 06-60662 (5th Cir.).

B. Administrative and Judicial Proceedings

Below

1. EPA Phase Il Rulemaking

EPA’s Phase II Section 316(b) rulemaking applies

to cooling water intake structures with a design flow of

at least 50 million gallons of water per day at existing

power producing facilities subject to Section 301 of the

Clean Water Act. Pet. App. 9a-10a (40 C.F.R. § 125.91)).

EPA determined that closed-cycle cooling systems were

not required and that a covered point source could meet

the BTA standard by utilizing any of a “suite of

technologies” capable of meeting national technology-

based performance standards. Jd. at 12a. These

performance standards required that impingement

mortality and entrainment be reduced for all life stages

of fish and shellfish within specified numeric ranges

(expressed as percentage reductions from a baseline),

with some facilities exempted from the entrainment

requirement. /d. at 12a-14a (40 C.F_R. § 125.94(b)).

The Phase II regulations established several

compliance alternatives for achieving these standards.

Pet. App. 10a (40 C.F.R. § 125.94(a)). The first included

a reduction in flow commensurate with a closed-cycle

recirculating system, which would be deemed sufficient

to meet both impingement mortality and entrainment

performance standards. /d. at 12a (§ 125.94(a)(1)(i)).

Another option was “a_ site-specific compliance

alternative” that required a permitting authority to

make a site-specific determination of BTA that is “as

close as practicable” tc national performance standards

if a facility demonstrated that its compliance costs

would be “significantly greater than the benefits of

complying” with the performance standards. See :d. at

14a (§ 125.94(a)(5)(i)).

2. Lower Court Decision

Both industry petitioners and environmental and

state respondents petitioned for review of the EPA

Phase II rulemaking, which was heard on direct review

by the Second Circuit. The appellate court denied

almost all industry challenges’® and granted relief in

response to all respondents’ claims."' Pet. App. la-94a.

First, the court held that EPA had failed to explain

adequately the basis of its rulemaking. The “record

evidence alone * * * is oblique, complicated, and

insufficient to permit us to determine what the EPA

relied upon in reaching its conclusion.” |. App. 35a;

'° The court rejected industry challenges to EPA’s application of

Section 316(b) to existing sources, definition of “adverse

environmental impact.” assumption of zero entrainment survival,

lack of definition of “Great Lakes,” and failure to account for the

supposedly disproportionate impact on the nuclear industry. None

of those rulings is affected by this Court's disposition of this case.

"! Because the question presented by this case ts distinct from most

of these rulings in favor of respondents below, a remand to EPA is

necessary regardless of the outcome in this case. Lower court

rulings include that facilities cannot meet national performance

standards based on use of restoration measures, that the ranges

within EPA’s national performance standards impermissibly

allowed facilities capable of meeting higher standards to meet

lower standards instead, and that there was inadequate notice of

various other aspects of the rule.

see also sd. at 33a ( “difficult to discern from the record

how EPA determined that the cost of closed-cycle cooling

could not be reasonably borne by the industry”).

Second, the court held that “the language of 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.” Pet.

App. 23a-24a (emphasis omitted). The court stressed,

however, that EPA could take costs into account. The

terms “best available” meant EPA should consider

whether the costs of a particular technology could be

“reasonably borne” by the industry. /d. at 24a. The

court also made clear that if more than one technology

achieves “essentially the same results,” EPA can

“appropriately choose the cheaper technology” on cost-

effectiveness grounds. /d. at 27a.

On this same ground, the court faulted both EPA’s

rejection of the closed-cycle cooling option for national

performance standards and its allowance of a site

specific cost-benefit compliance variance option. With

regard to the former, the court ruled that it could not

discern whether EPA had improperly relied on a cost-

benefit comparison because, as previously described, the

Agency had failed to articulate the basis of its decision.

The court, accordingly, remanded to EPA for an

adequate explanation of its decision. /d. at 32a, 36a-37a.

The court, however, squarely concluded that the

cost-benefit variance option was invalid: “The Agency

is * * * precluded from undertaking such cost benefit

analysis because the BTA _ standard represents

Congress's conclusion that the costs imposed on

industry in adopting the best cooling water intake

structure available * * * are worth the benefits in

reducing adverse environmental impacts.” Pet. App.

57a-58a. The court further noted how the site-specific

cost-benefit compliance option directly contravened

Congress’s policy choice in the Act not to relax

technology-based standards on the basis of local water

quality. Jd. at 58a.

SUMMARY OF ARGUMENT

The short answer to the question posed by this

Court in granting certiorari is that Congress did not

authorize EPA in Section 316(b) of the Clean Water Act

to compare costs and benefits in determining the “best

technology available for minimizing adverse

environmental impact” of cooling water intake

structures. Congress instead exercised its prerogative

to answer that essential policy question itself by

prescribing the extent to which both costs should be

incurred and benefits should be achieved. And,

Congress’s deliberate decision to adopt a technology-

based performance standard approach that precludes

EPA from striking a different cost-benefit balance is

entirely in keeping with the legislature's highiy

successful decision in 1972 to free the safeguarding of

the nation’s waters from the scientific and economic

uncertainties inherent in the application of water

quality standards.

A. To find the answer to the question posed by this

Court, one need look no further than the plain meaning

of Section 316(b)’s language. ‘The statute provides that

EPA must develop standards governing the design,

location, construction, and capacity of cooling watcr

intake structures that reflect the “best technology

available for minimizing adverse environmental

impact.” Congress, accordingly, made clear the two

defining touchstones for EPA’s determination of this

particular “best technology” standard. The technology

must be “available” and it must be the best of those

available technologies for “minimizing adverse

environmental impact.” The former governs the extent

to which costs can and must be tolerated, and the latter

establishes the extent to which environmental benefits

can and must be achieved consistent with those costs.

What is not left for EPA is any authority to

reconsider how those costs and benefits should be

weighed in comparison to each other. EPA can no more

determine that the costs of available technology do not

warrant the benefits of minimizing the adverse

environmental impact than it can conclude that the

benefits warrant a cost higher than that supported by

available technology. Congress took both those

inquiries off the table.

B. The Clean Water Act’s overall structure

confirms Section 316(b)’s plain meaning. Throughout

the Act, Congress used precise and particular language

to make clear to what extent costs and benefits could be

considered by EPA in the establishment of various

technology-based performance standards and when, in

carefully limited contexts, any independent comparison

by EPA of the relation of those costs to pollution control

benefits would be permissible. Within that broader

statutory context, Congress’s contrasting failure to

provide EPA with any such cost-benefit comparison

authority in Section 316(b) is dispositive of the question

presented in this case.

C. In the face of such clear statutory meaning, the

legislative history need not be consulted. But, not

surprisingly, that history fully corroborates the

statutory text’s plain meaning. What that history

reveals is that the single most important policy issue

facing Congress and the White House in 1972 was the

extent to which Congress should strike the cost-benefit

balance itself or instead delegate such authority to EPA

in the establishment of water pollution controls capable

of meeting the nation’s ambitious goals for protecting

water quality. The Senate and House embraced sharply

contrasting approaches and reached a compromise bill

only after more than six months of conference

committee deliberations on the precise statutory

wording on the role of costs, benefits, and their

comparison. The final bill repeatedly eliminated

language in different sections that would have

authorized EPA to engage in the kinds of cost-benefit

comparisons petitioners here advocate.

Indeed, Section 316 itself expresses a clear

congressional compromise directly relevant to the

resolution of this case, based on the different policy

approaches that Congress embraced in addressing the

regulation of thermal discharges in Section 316(a) and

cooling water intake im Section 316(b). For the former,

Congress rejected a House proposal to authorize EPA to

engage in cost-benefit analysis, but Congress did allow

EPA to excuse compliance with a technology-based

standard upon demonstration of achievement of a

prescribed biologically-based standard. But for the

latter, Congress required a strict technology-based

approach under which Congress itself answered the

question of how costs and benefits should be compared:

the adverse environmental impact must be “minimized”

by use of the “best technology available.”

D. What EPA plainly cannot now do is write back

into the statute the very wide-ranging authority to

compare costs and benefits that Congress purposely

demed EPA. Nor can this Court second-guess that

legislative policy determination. The judgment of the

court of appeals should be affirmed.

ARGUMENT

SECTION 316(b) Of THE CLEAN WATER ACT DOES

NOT AUTHORIZF, EPA TO DETERMINE THE “BEST

TECHNOLOGY AVAILABLE FOR MINIMIZING

ADVERSE ENVIRONMENTAL IMPACT” BASED ON

THE AGENCY’S OWN COMPARISON OF THE COSTS

AND BENEFITS OF POSSIBLE TECHNOLOGIES

We note at the outset that industry petitioners and

the Solicitor General fundamentally disagree on the

proper analytic framework for resolving the question

presented.” Industry petitioners believe that Section

316(b)’s meaning is plain and unambiguously authorizes

EPA to compare costs and benefits in establishing BTA.

See Entergy Br. 31-32; UWAG Br. 31. The Solicitor

General, however, contends that the statutory language

“does not speak to the question presented” but is instead

ambiguous. U.S. Brief 15. The Solicitor General

nonetheless argues that EPA’s view of Section 316(b)

should be upheld as a reasonable interpretation of

ambiguous statutory language. Jd. at 15-23.

The Solicitor General is correct that the statute's

plain meaning does not support industry petitioners’

reading of Section 316(b). But the Solicitor General is

wrong in contending that the language is ambiguous

and can be reasonably construed to allow EPA authority

to compare costs and benefits. The plain meaning, as

” Because the Solicitor General on behalf of respondent EPA is

aligned with industry petitioners on the question before this Court,

general references in this bricf to the “petitioners” will refer both

to the Solicitor General and industry petitioners. Otherwise, these

parties will he referred to separately as the “Solicitor General” and

“industry petitioners.”

evidenced by the language Congress used in Section

316(b), the statutory structure and purpose, and the

legislative history, denies EPA any such authority, and

the relevant statutory language cannot be reasonably

construed to support the Solicitor General’s position.

A. The Plain Meaning of Section 316(b) Makes

Clear that Comparing Costs and Benefits Is

Outside the Scope of EPA’s Authority in

Determining the “Best Technology Available

for Minimizing Adverse Environmental

Impact” of Cooling Water Intake Structures

1. Petitioners strive mightily to avoid the plain

meaning of the words Congress actually wrote in

Section 316(b) by seizing on a series of “sometimes”

(U.S. Br. 16) meanings of the statutory language

derived not from the primary, secondary, or even

tertiary definitions of the relevant terms but from the

octonary ones. They accordingly concoct an

extraordinary reading of Section 316(b) that is

boundless in its delegation of lawmaking authority to

EPA:

[T]he ‘best technology available for minimizing

adverse environmental impact’ may be 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.

“Best” is therefore stripped out of its statutory

context to allow EPA to select the technology it prefers

based on whatever factors it deems appropriate. See

Entergy Br. 33; U.S. Br. 15°16. The _ statutory

requirement that the technology be best “for minimizing

adverse environmental impact” is completely undone by

the claim that the word “for” allows EPA to decide

whether a particular technology is “suitable” or

“appropriate” based on whichever factors it deems

proper, wholly apart from the statutory requirement

that adverse environmental impacts be “minimizl[ed]” by

available technology. See U.S. Br. 16. And, finally, the

“minimizing” standard itself is transformed into no

more than a “reduction” aspiration that EPA is

permitted to pursue while simultaneously pursuing

other competing values of its choiee. See U.S. Br. 17-18:

Entergy Br. 34-35.

Contrary to petitioners’ proffer. however, the role

of a court in construing statutory language is not to

determine its strained meaning, but its p/ain meaning.

While discernment of the former might call for a journey

into rarefied and unlikely uses of language, the latter is

much simpler and therefore more judicial. It looks to

the primary and ordinary meaning of the language

Congress used in its context. Here, moreover, the

ordinary meaning of the language at issue is wholly

consistent with the primary definitions of all the

relevant terms. Section 316(b) means exactly what it

says.

a. First, the word “best” in no manner authorizes

EPA to engage in wide-ranging cost-benefit analysis.

The primary, ordinary meaning of “best” when used, as

in Section 316(b), as an adjective is “surpassing all

others in excellence.” The American Heritage

Dictionary of the English Language 173 (4th ed. 2000):

see Webster's Third New International Dictionary 208

(1971) “excelling or surpassing all others of its kind”):

2 The Oxford English Dictionary 139 (2d ed. 1989).

If, of course, Section 316(b) provided only that EPA

should determine the “best technology,” without more,

then petitioners might reasonably argue that Congress

had delegated to EPA authority to determine what the

technology should be “best” at accomplishing. But

Section 316(b) does no such thing. The statute

expressly dictates precisely what the technology must be

best “for”: “minimizing adverse environmental impact.”

b. Here too, the meaning of “for” is clear and we

need look no further than its primary meaning: “used to

indicate the object, aim, or purpose of an action or

activity.” The American Heritage Dictionary, supra, at

686. The Solicitor General’s desperate seizure of an

eighth meaning in support of its claim that the word

“for” instead confers on EPA broad discretion to decide

whether technology is “suitable” or “appropriate” is self-

refuting. See The American Heritage Dictionary, supra,

at 686 (8th definition); 6 The Oxford English Dictionary.

supra, at 24 (13th definition); Edwin B. Williams et al.

eds., Zhe Scribner-Bantam English Dictionary 356

(1977) “appropriate” listed as the 18th definition). And,

in all events, the statutory language prescribes precisely

what the technology must be suitable for: minimizing

adverse environmental impact.

c. Nor is there any more merit in petitioners’

contention that the word “minimizing” merely calls for

EPA “to reduce” based on the Agency's own balancing of

the value of such reduction compared to other competing

values. As EPA originally recognized in 1976 (see 41

Fed. Reg. 17388 (J.A. 41)), the ordinary definition of

“minimize” in its statutory context is “to reduce to the

smallest possible amount, extent, size, or degree” and

not simply “to reduce.” The American Heritage

Dictionary, supra, at 1119: 9 The Oxford English

Dictionary, supra, at 815; Webster's Third New

International Dictionary, supra, at 1438.

Even more fundamentally, the plain meaning of

“minimizing” does not contemplate a balance at all, let

alone a cost-benefit comparison. The purpose of a cost-

benefit balance is not to minimize adverse

environmental impact, but to determine the permissible

environmental impact based on the wholly different

policy premise that the cost of reduction should not be

greater than the corresponding benefits. A

“minimizing” standard permits no such comparison.

Nor, of course, does the “minimizing” requirement

mandate that one must reduce at all costs. Where, as

with Section 316(b), the statute further provides that

the technology must be “available,” that separate

requirement ensures that costs are considered in

determining whether the technology is available. But,

consideration of costs is a far cry from a cost-benefit

comparison. "®

d. There is, to be sure, some potential ambiguity

in terms of what the word “available” means — in

particular, whether it extends beyond physically

available to include economically available. See The

American Heritage Dictionary, supra, at 123 (“present

and ready for use; at hand: accessible”); Webster's Third

New International Dictionary, supra, at 150 (“accessible

or may be obtained”). The Second Circuit held that the

term “available” allows EPA to consider costs in

determining whether a particular technology is feasible

for a particular category of facilities. This has long been

' Petitioners repeatedly conflate the two, suggesting that the issue

here is whether EPA can consider costs under Section 316(b) and

further suggesting environmental respondents contend EPA cannot

do so. We make no such claim, and that is not the issue before the

Court, which 4s—limited to EPA's authority to undertake cost-

benefit comparisons.

EPA’s view, and we do not dispute that threshold

proposition. But permitting EPA to consider economic

feasibility in determining whether a given technology is

“available” on a categorical basis is wholly different

from permitting the Agency, contrary to the statute’s

plain terms, to decide that the costs of such technology,

while economically feasible for an industry, do not

warrant “minimizing adverse environmental impact.”

2. The only limitation on the extent of benefits

to be achieved, therefore, is the cost of available

technology. The statute leaves no room for EPA to

conclude that those benefits are not worth the costs of

available technology. Nor does the statutory language,

conversely, authorize EPA to conclude that the benefits

to be obtained warrant expenditures even higher than

those called for by available technology. Both those

policy inquiries are outside the bounds of

congressionally delegated lawmaking authority under

Section 316(b).

The Solicitor General's contrary argument rests on

a false syllogism. He argues that because Congress

authorized EPA to consider costs and to consider

benefits, the legislature must be deemed to have

authorized the Agency to compare the two. See U.S. Br.

30. But that is precisely what Congress did not do.

And, deliberately so.

Congress instructed EPA to consider the costs in

order to ensure “availability.” And the legislature

likewise instructed the Agency to consider the benefits

in order to ensure that environmental impact was

minimized. But Congress did not permit EPA to second-

guess the legislative judgment that environmental

impact must be minimized with available technology by

authorizing the Agency to weigh the benefits of the

former against the costs of the latter. “Congress itself

defined the basic relationship between costs and

benefits * * *” (American Textile Manufacturers

Institute, Inc. v. Donovan, 452 U.S. 490, 509 (1981)) and

did not leave it to EPA to decide what value to assign to

these competing interests. Cf Dept. of Revenue,

Kentucky v. Davis, 128 S. Ct. 1801, 1821 (2008) (Scalia,

J., concurring in part) (“Of course you cannot decide

which interest ‘outweighs’ the other without deciding

which interest is more important to you.”).

3. Petitioners dangle the usual parade of absurd

results they claim will result from reading Section

316(b) based on its plain meaning. None has credence.

Although Section 316(b)’s plain meaning defeats

petitioners’ claim that EPA can compare costs and

benefits in determining BTA, EPA retains discretion to

administer Section 316(b) in a manner that is both

consistent with congressional intent and capable of

avoiding petitioners’ proffered horribles.

a. For example, Section 316(b)’s denial of any

authority to EPA to compare costs and benefits in

determining BTA does not mean that EPA lacks any

discretion in determining which “adverse environmental

impact” must be minimized. Many of petitioners’

proposed absurdities are rooted in the notion that EPA

is authorized to minimize only entrainment and

impingement (which EPA found to be the “primary,

harmful environmental effects” that specific

technologies can reduce (Pet. App. 234a)), and EPA can

give no regard to other kinds of possible adverse

environmental! impacts related to the location, design,

construction, and capacity of cooling water intake

structures. Nothing in the plain meaning of Section

316(b), however, compels such an illogical result.

Indeed, the Second Circuit acknowledged EPA's

authority to consider also energy efficiency and other

environmental impacts. See /d. at 26a-27a n.12."

b. Nor is there any merit to the absurd result most

often repeated by petitioners and their amici: the

specter of industry paying billions of dollars to save one

fish (or trillions to save one hapless individual

plankton). Although the meaning of “minimizing” is

plainly not merely to reduce, it is also just as plainly not

so constricted as to require EPA to require industry

petitioners to spend billions to save one more fish or

plankton. Certainly nothing in the plain meaning of the

terms “minimizing adverse environmental impact”

compels EPA to establish its BTA standards as precise

single-number limitations without any flexibility or

margin of error. Just as in other legal contexts, there

can be de minimis differences. And, the Agency has

some discretion (albeit not boundless) to determine that

further differences in reduction would be so minor as to

be unnecessary for compliance with the minimizing

requirement. Petitioner UWAG acknowledges this

critical point: “Minimizing adverse environmental

impact” is “indisputably broad enough to authorize EPA

* * * to decide at what point [impacts] have been

‘minimized.” UWAG Br. 45. We agree.

Hence, if the reduction in adverse environmental

impact to be gained from an “enormously expensive”

technology would be without “any meaningful

environmental consequence” (Entergy Br. 50), with “no

'* The full range of “adverse environmental impacts” EPA can

consider and the weight each is assigned are not before the Court

because they present questions distinct from EPA's authority to

compare costs and benefits. Prudence supports deferral of their

resolution to a cuse where, unlike here. they are squarely and

necessarily presented

corresponding environmental benefit” (API Amicus Br.

4), or “identical” to much less expensive measures

(American Chemistry Council Amicus Br. 8), Section

316(b) would not compel adoption of the more expensive

technology because impacts will have already been

minimized by the less expensive technology.

It would not, for this same reason, require a facility

that withdraws cooling water from a water body with no

aquatic organisms at all — a completely implausible

scenario — to implement expensive controls to meet

BTA. See Entergy Br. 50. Section 316(b) does not, after

all, require EPA to order that a certain technology be

used, but permits the Agency instead to establish

performance standards that reflect the use of available

technology. In the Phase II rule, EPA did just that,

expressing the performance standards as percentage

ranges for the reduction of impingement mortality and

entrainment. If a water body has no aquatic life and

therefore a facility has no adverse environmental

impact, then it should be able to meet such a

performance-based standard without the need for the

expensive controls that would be necessary for facilities

in other areas. In that (unlikely) scenario, run-of-the-

mill technology would protect exactly the same number

of fish (and therefore have the same environmental

impact) as state-of-the-art technology, and satisfy the

environmental performance standard.'®

In other ways, EPA possesses discretion to

announce a standard that satisfies the minimization of

‘* But, of course, if the intake structure's past operations are the

reason for the current lack of aquatic organisms, which would

return in significant amounts upon intake reduction, then one

could not posit that the continued withdrawal of large volumes of

water is having no “adverse environmental impact.”

adverse environmental impact requirement without

adopting a one-size-fits-all rule. As the court below

explained, in doing so EPA retains discretion to decide

that the minimization requirement does not mandate

some precise numerical reduction (“identically

effective”) but can be satisfied by a reduction within a

prescribed range or, presumably, by not harming more

than a prescribed amount. Pet. App. 28a. Cost-benefit

comparison authority is not necessary to achieve this

sensible end.’®

ec. Finally, equally unavailing are the absurd

hypotheticals that petitioners advance based on the

supposition that EPA is always required to make BTA

determinations on the broadest categorical basis

conceivable. Thus, petitioners claim that our suggested

reading of Section 316(b)’s terms means that EPA will

be forced to ignore any and all differences among

facilities and their locations. See UWAG Br. 43-50;

did we argue, that EPA was precluded from using any ranges in its

BTA national performance standards describir g the reduction of

adverse environmental impact to be achieved. The problem with

EPA’s ranges in its Phase II rulemaking was not the mere fact that

they were ranges, but that the rule allowed facilities fully capable

of achieving performance near the upper end of the range to choose

technology to meet only the lower end. /d. at 43a. For this same

reason, moreover, regardless of the Court's disposition of the

question presented in this case, the Court should reject the claim

of the Solicitor General (Br. 39 n.3) and Entergy (Br. 58-59) that

this Court should also reverse the lower court's ruling on the

validity of EPA’s ranges. The Second Circuit's invalidation of those

ranges rested on a legal ground distinct from the cost-benefit

question now before the Court, petitioners chose not to petition on

that distinct issue, and they should not be allowed now to “smuggle

additional questions into a case before [the Court] after the grant

of certiorari.” Norfolk Southern Railway Co. v. Sorrell, 127 S. Ct.

799, 805 (2007).

Nuclear Energy Institute Amicus Br. 22-25; Nebraska,

et al. Amicus Br 8-10.

Petitioners and their amici are confusing distinct

issues and trying to inject a legal issue into the case not

in fact presented. Whether EPA can compare costs and

benefits in determining BTA and whether EPA can

determine BTA based on site-specific, narrow, or broad

categorical bases present different legal issues.'’ We do

not deny, moreover, that the language of Section 316(b),

focusing on features such as “location, design,

construction, and capacity,” naturally lends itself to

tailored agency regulation based on less broad

categories. And, we did not challenge in this case

several aspects of the Phase II rule that drew

distinctions based on considerations such as location.

See, e.g., 40 C.F.R. § 125.94(b)(2)(ii)(A) (2007) (“Your

facility uses cooling water withdrawn from a tidal river,

'? Industry petitioners and their amici insist that the only sensible

approach is site-specific, not categorical, determinations of BTA

performance standards. Entergy Br. 46-48; UWAG Br. 7-10,45-57;

Nuclear Energy Institute Amicus Br. 4, 22-25; Nebraska, et al.

Amicus Br. 8-10. The sole question presented in this case,

however, is whether EPA can compare costs and benefits in setting

BTA standards under Section 316(b), and the answer to that

question does not depend on whether EPA is making its BTA

determination on a categorical (whether broadly or narrowly

drawn) or site-specific basis. The extent of EPA's discretionary

authority to make determinations on site-specific grounds or on a

narrow rather than broad categorical basis is an entirely distinct

issue (see Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116,

131 (1985); EI. du Pont de Nemours & Co. v. Train, 430 U.S. 112,

126-129 (1977)) and, in the context of Section 316(b), is at issue

now in the Fifth Circuit's renew of EPA’s Phase II] regulations.

See ConocoPhillips Co , et al. v. EPA, No. 06-60662 (Sth Cir.). Here

again, industry petitioners should not be allowed to inject new

questions not fairiv presented by the Court's grant of review. See

note 16, supra

estuary, ocean, or one of the Great Lakes * * *”) (Pet.

App. 560a); Jd. § 125.94(b)(2)Gi)(B) (“Your facility uses

cooling water withdrawn from a freshwater river or

stream * * *”) (Pet. App. 560a).

Of course, as always, EPA’s discretion here is not

boundless, because otherwise EPA could too easily

subvert the technology-forcing aspect of the BTA

standard. But that limit’s outer bounds are not

implicated by this case. For the purposes of this case, it

should be sufficient to note that none of the arguments

we present as to Section 316(b)’s plain meaning on the

question in fact presented in this case compels the

crabbed reading of EPA’s authority upon which

petitioners’ projected absurdities depend.

In sum, there is nothing absurd about applying

Section 316(b) according to its plain terms. Section

316(b) may well be Herculean in its ambition, but there

is nothing “Sisyphean” in the tasks it assigns. Entergy

Br. 52.

B. The Statutory Structure and Context

Confirm Section 316(b)’s Plain Meaning

The Clean Waiter Act’s statutory structure and

context confirm Section 316(b)’s plain meaning by

underscoring the deliberate and limited way Congress

chose to authorize EPA to relate costs to benefits in the

establishing of cnvironmental protection standards

under the Act. “Where Congress includes particular

language in one section of a statute but omits it in

another * * *, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.” Aeene Corp. v. U.S., 508 U.S.

200, 208 (1993), quoting Russello v. U.S., 464 U.S. 15,

23 (1983): see Allison Engine v. U.S. ex rel. Saunders,

128 S. Ct. 2123, 2129 (2008).

When Congress passed the Clean Water Act in

1972, it displayed a striking reluctance to authorize

EPA to base its determination of environmental

performance standards on a comparison of costs and

benefits. As previously described (see pp. 6-8, supra),

Congress deliberately severed the determination of

those performance standards from a showing of water

quality impacts because of the tremendous scientific and

economic uncertainties associated with measuring and

assessing those impacts. The Act mandated that EPA

promulgate a series of demanding requirements, yet

expressly authorized EPA to compare costs and benefits

in determining the degree of controls to be imposed in

only two extremely limited circumstances.

1. First, Congress authorized EPA to compare

costs and benefits in the promulgation of one

technology-based effluent limitation. Section

304(b)(1)(B) provided that among the factors that EPA

shall consider in determining BPT is the “total cost of

application of technology in relation to the effluent

reduction benefits to be achieved * * *.” 33 U.S.C. §

1314(b)(1)(B). The only other instance in 1972 when

Congress expressly called for a direct cost-benefit

comparison was in providing for an exemption from the

application of water quality based effluent limitations

that are more stringent than technology-based effluent

limitations under Section 302. See Pub. L. 92-500, §

302, 86 Stat. 846 (1972) (subsequently amended).

Under that provision, EPA cannot apply any such more

stringent standard to a person who demonstrates that

“there is no reasonable relationship between the

economic and social costs and the benefits to be obtained

* * *” Td. § 302(b)(2). Neither of these examples

advances petitioners’ cause.

a. In 1972, when Congress created the BPT

standard, Congress made clear its intent to phase BPT

out and replace it no later than 1983 with a different

technology-based standard, BAT, that was designed to

be more stringent than BPT and lacked any comparable

allowance for EPA to relate costs and benefits in its

determination. Indeed, this Court has noted the

contrast between the statutory language used for BPT

and BAT, the absence of any cost-benefit language for

BAT, and Congress’s obvious desire not to authorize

EPA to engage in such a comparison in determining

BAT. See Crushed Stone, 449 U.S. at 71 (“in assessing

BAT total cost is no longer to be considered in

comparison to effluent reduction benefits”).

Petitioners and their amici ignore the clear import

of the congressional decision to provide for limited cost-

benefit analysis in determining BPT for a few years and

to eliminate any such analysis in BAT’s determination

by asserting that the only difference between BPT and

BAT is that the Agency is required to engage in limited

cost-benefit analysis for the former and permitted to do

so for the latter. See U.S. Br. 21, 24; Entergy Br. 39-40;

UWAG Br. 35-36; ACC Amicus Br. 22-23. Their

primary textual support for this extraordinary claim is

the inclusion in Section 304(b)(2)(B), which lists the

factors EPA is to consider in determining BAT, of a final

clause referring to “such other factors as_ the

Administrator deems appropriate.” 33 U.S.C. §

1314(b)(2)(B).

That clause cannot, however, be reasonably

construed to completely upend the selective and

deliberate manner in which Congress had otherwise

carefully prescribed the precise extent to which costs

and benefits could be considered, and when, if ever, the

Agency was empowered to compare one to the other.

There is not even a hint of support in the text or

legislative history of the clause for petitioners’ radical

notion that the only policy dispute separating the House

and Senate was whether EPA would be required to

engage in cost-benefit analysis, including assessment of

water quality impacts, rather than authorizedto do so.'®

Just the opposite is true. As this Court has

previously noted, the legislative history leaves no

question that Congress intended for BAT to be more

stringent than BPT, and the absence of authority to

engage in cost-benefit analysis consideration in

determining BAT was a major basis for that intended

difference. The Court described in Crushed Stone how

the statute sets forth “[slimilar directions” for the

determination of BPT and BAT in Sections 304(b)(1)(B)

and 304(b)(2)(B) with the single exception that “in

assessing BAT total cost is no longer to be considered in

comparison to effluent reduction benefits.” 449 U.S. at

71; see 1 Leg. Hist. 170 (statement of Senator Muskie)

(“In making the determination of ‘best available’ for a

category or class, the Administrator is expected to apply

the same principles involved in making the

determination of ‘best practicable’ (outlined above)

except as to cost-benefit analysis.”) (emphasis supplied).

In hght of the contrasting language and the clear

congressional purpose to ensure that BAT was “more

stringent” than the “more modest” BPT (Chemica/

Manufacturers Ass'n, 470 U.S. at 118; Crushed Stone,

449 U.S. at 75 n.14), it is beyond any notion of

plausibility to construe the final clause in Section

'® The difference between petitioners’ notion of mandate versus

permission is also likely ulusory. If, as petitioners contend

(Entergy Br. 31), EPA is permitted to compare costs and benefits,

no doubt industry petitioners would also argue that EPA would be

acting arbitrarily and capriciously by not doing so

304(b)(2)(B) as, in effect, permitting EPA to inject back

into the BAT determination any factor of its choosing,

including presumably cost-benefit analysis even more

forgiving than that provided for in Sectior. 304(b)(1)(B)

for BPT.'* “Congress * * * 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.

American Trucking Ass‘ns, 531 U.S. 457, 468 (2001);

Gonzalez v. Oregon, 546 U.S. 243, 274 (2006). It is

significant in this regard that the language of this final

clause was not added during the lengthy Senate and

House conference discussions, but was included in the

original Senate bill, which eschewed providing EPA

with the kind of open-ended authority petitioners

nonetheless claim here. See S. 2770 §§ 304(b)(1)(B) &

304(b)(2)(B), 2 Leg. Hist. 1615 (“and such other factors

as the Administrator deems appropriate”).”°

b. Section 302 is likewise unavailing to petitioners.

It requires EPA to undertake a cost-benefit comparison,

but not for the purpose of relaxing compliance with a

technology-based standard, let alone for determining

such a standard. See Pub. L. 92-500, § 302, 86 Stat.

846. Instead, costs and benefits are compared under

Section 302 only for the very different purpose of

relaxing application of a water quality standard that is

'S Of course, whatever its meaning, in no event is the language of

Section 304(b)(2)(B) part of Section 316(b). The Solicitor General

is correct that “|t}he only direct consequence of the cross-reference

fin Section 4316(b) to Sections 301 and 306] 1s a procedural one,”

indicating which standards must require BTA for cooling water

intake structures. U.S. Br. 18-19.

*’ For a further refutation of petitioners’ claim on this issue, see

Environmental Law Professors Amicus Br. II.B: Environment

America Amicus Br.

more stringent than a technology-based standard if

there is “no reasonable relationship” of costs to benefits.

§ 302(b)((2). Such a differently-directed provision

provides no support for petitioners’ suggestion that

Congress intended to confer authority on EPA in Section

316(b) to compare costs and benefits in determining

BTA.”

c. Nor are petitioners supported by the two

instances in which Congress in 1972 authorized EPA to

take water quality impact into account as a possible

basis for relaxing a technology-based standard. The

first allows for a modification of BAT for individual

sources for which compliance cost is particularly

onerous so long as the source demonstrates further

reasonable progress toward discharge elimination. See

33 U.S.C. § 1311(c). The second, Section 316(a), applies

to thermal discharges and allows for an exemption from

a technology-based effluent limitation upon a showing

that its application is not necessary to meet statutorily-

described fish population objectives. Neither of these

narrowly-drawn provisions, however, contemplates

EPA’s undertaking a _ cost-benefit comparison or

otherwise authorizes EPA to determine how the cost-

benefit balance should be struck. In each, Congress

declared how the balance should be struck. Both

accordingly provide further reason for believing that

“! Indeed, a parenthetical within Section 302 made clear that

Congress assumed that technology based standards were not based

on cost-benefit comparisons. The parenthetical provides that the

lack of a reasonable cost-benefit relationship is grounds for

relaxing the water quality-based effluent limitation “whether or

not such technology * * * [is] available,” further underscoring

Congress's belief that a technology could be “available” even absent

a reasonable relationship between costs and bencfits. Pub. L. 92

500, § 302(b)(2).

Congress did not intend to provide EPA with sweeping

authority to engage in cost-benefit comparisons in the

absence of express legislative authorization. Perhaps

that is why the Solicitor General fails even to

acknowledge Section 316(a)’s existence in his brief.

2. Petitioners and their amici also mistakenly rely

on a host of other Clean Water Act provisions in an

effort to buttress their argument that Congress

intended, with statutory silence, to authorize EPA to

compare costs and benefits in determining BTA. Hence,

they poiit out the Act also provides for :

e A technology-based standard for

conventional pollutants that, like BPT,

allows for some consideration of the

relationship of costs and benefits (33 U.S.C.

§ 1314(b)(4)(B)); see U.S. Br. 20; Entergy Br.

39; ACC Amicus Br. 19); and

e A series of variances for:

° Some pollutants to allow their

control to be reduced from BAT to

BPT (33 U.S.C. § 1311(g); see U.S.

Br. 21; UWAG Br. 47: Entergy Br.

43-44);

° Some kinds of discharges into deep

waters or marine waters (33 U.S.C.

§ 1311(h)&(m); see Entergy Br. 36):

and

Some discharges of toxic pollutants

subject to BAT standards (33 U.S.C.

§ 1311(n): see Entergy Br. 44-45).

None of these provisions, however, aids petitioners’

claim on the issue presented. First, Congress added

each of these provisions long after 1972 and the

question in this case is what Congress intended in 1972,

when it enacted Section 316(b), and not in later years

when it changed other provisions of the Clean Water Act

unrelated to Section 316(b). No less important, each of

these provisions demonstrates that Congress continued

after 1972 to take extreme care and to act with great

precision in deciding when to authorize EPA to compare

costs and benefits either in establishing environmental

performance standards or excusing facilities from

compliance with such standards.

For instance, the reason Congress decided to create

the BCT standard was that, contrary to petitioners’

submission here, Congress understood that the BAT

standard is “not subject to any test of cost in relation to

effluent reduction benefits or any form of cost/benefit

analysis” and that “in establishing limitations for

conventional pollutants * * * the best available

technology may not be the most appropriate technology

in terms of the relationship of the cost of achieving a

particular level of reduction and the amount of

reduction actually achieved.” 3 Legislative History of

the Clean Water Act of 1977 — A Continuation of the

Legislative History of the Federal Water Pollution

Control Act Amendments of 1972, 427 (Committee Print

compiled for the Senate Committee on Environment and

Public Works by the Library of Congress), Ser. No. 95-14

(1975) (hereinafter “3 Leg. Hist.”) (statement of Senate

Manager Senator Muskie). For this reason, and for

conventional pollutants only, Congress amended the Act

to include the same kind of limited cost-benefit analysis

already available in BPT as part of the basis for

determining BCT: to ensure that costs for one narrow

class of pollutants did not increase “beyond the ‘knee of

the curve,’ the take off point where incremental costs

begin to exceed incremental benefits.” /d at 330

(statement of House Manager Rep. Roberts).

So, too, some of the justifications that Congress

gave for making subsequent changes in the law to

provide for additional variances in narrowly-defined

circumstances mirror some of the arguments petitioners

advance now before this Court. See, e.g., 3 Leg. Hist.

258 (Conference Report) (new variance in “recognition

that there are some coastal areas of the United States

* * * where natural factors provide *** sufficient

elimination of traditional forms of pollution”). But, of

course, that is precisely why the subsequent

amendments upon which petitioners rely cut against

petitioners’ position. They demonstrate the correct way

to change the law if one believes, as petitioners plainly

do, that statutory provisions enacted in 1972 may be

unduly harsh in some possible application. No doubt

petitioners are disappoint °d that their efforts to date to

persuade Congress have been unsuccessful. See, e.g.,

H.R. Rep. No. 112 104th Cong., 1st Sess. Pt. 1, at 27-28

(1995) (H.R. 961, § 318, proposing to amend Section

316(b) to allow for consideration of “[t]he relative

environmental, social, and economic costs and

benefits”). But such failure before Congress provides no

basis for crossing the street and seeking relief from this

Court.

3. Finally, there is no merit to petitioners’

contentions that the ruling below relied on a “plain

statement rule” disfavoring cost-benefit analysis or

somehow contravened this Court’s decision in Chevron

v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), by failing to treat statutory silence as

establishing ambiguity. See U.S. Br. 30-32; Entergy Br.

24, 26 n.8.

a. First, neither environmental respondents nor

the Second Circuit relied on any “plain statement rule”

that disfavors in all contexts a conclusion that Congress

has authorized an agency to engage in cost-benefit

comparison. Like the court below, we contend only that

the meaning of the words Congress has chosen depends

on their statutory context and whether that context

makes it more or less likely that Congress intended a

particular result in the absence of an express statement

one way or the other. See, e.g., Dolan v. Postal Service,

546 U.S. 481, 486 (2006); Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809 (1989). That is why “ili is

generally presumed that Congress acts intentionally

and purposely’ when it ‘includes particular language in

one section of a statute but omits it in another.” City of

Chicago v. Environmental Defense Fund, 511 U.S. 328,

338 (1994).

This Court has applied this reasoning repeatedly

in construing statutes, including in cases where the

question relates to the agency’s authority to compare

costs with benefits (American Textile Manufacturers

Institute, Inc. v. Donovan, 452 U.S. at 510) or even to

consider costs at all (Union Electric Co. v. EPA, 427 U.S.

246, 257 n.5 (1976)). Of particular relevance, the Court

did so most recently in WAitman v. American Trucking,

in determining whether Congress intended to authorize

EPA to consider compliance costs in establishing air

quality standards under the Clean Air Act. The Court

“refused to find implicit in ambiguous sections of the

Clean Air Act an authorization to consider costs that

has elsewhere, and so often, been expressly granted.”

531 U.S. at 467. The same reasoning applies here. See

531 U.S. at 468-69 (“The implausibility of Congress's

leaving a highly significant issue unaddressed (and thus

‘delegating’ its resolution to the administering agency)

is assuredly one of the factors to be considered in

determining whether there is ambiguity.”).

b. Nor is there any tension between relying on

Section 316(b)’s plain meaning and Chevron. A statute

is not “silent” for Chevron purposes whenever the

statutory language does not expressly address the

precise legal question at issue. The Clean Air Act in

American Trucking did not have to provide expressly

that EPA could not consider costs in establishing

national ambient air quality standards for the Act to

have a plain meaning. Nor did the Resource

Conservation and Recovery Act in City of Chicago v.

Environmental Defense Fund have to provide expressly

that a particular ash residue was not exempt from

hazardous waste regulation for that Act to have a plain

meaning. In light of the statutory language and

structure, the absence of an express exemption was

what mattered. 511 U.S. at 334-35. The same is true

here.

C. EPA’s Implementation of Section 316(b) Does Not

Defeat Its Plain Meaning

1. Petitioners claim that the lower court’s plain

meaning interpretation cannot be squared with EPA’s

interpretation of Section 316(b) over the last thirty

years. See U.S. Br. 27, UWAG Br. 15, 37, 41. They are

mistaken. Contrary to their characterization of EPA’s

past practice, until the rulemaking at issue in this case,

EPA did not claim the authority to inject a wide-ranging

cost-benefit analysis into standard setting under Section

316(b). Indeed, EPA had denied, rather than claimed,

such authority, and its current rulemaking finds no

historical precedent.

When EPA first faced the question presented in

this case in the original 1976 rulemaking designed to

implement Section 316(b), it flatly rejected industry's

claim that cost-benefit analysis was required (see 41

Fed. Reg. 17388) and, even more important, did not

leave any room for petitioners’ claim that the Agency

was addressing only whether such analysis was

“required” rather than “permitted.” See UWAG Br. 38-

39. EPA then explained that cost-benefit analysis was

not appropriate because “[t]he statute directs the

Agency to insure that enumerated aspects of cooling

water intake structures reflect the best technology

available for minimizing adverse environmental

impact.” 41 Fed. Reg. 17388 (emphasis supplied).

Accordingly, “{olnce such adverse effects have been

identified * * *, then the effort must be to select the

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

smallest possible amount or degree’) those adverse

effects.” Jd. (emphasis supplied). See J.A. 41.

To be sure, in the years between the judicial

rejection of EPA’s initial rulemaking and the Agency’s

promulgation of the rules challenged here, EPA did

claim that the Clean Water Act allowed permitting

agencies in individual permit proceedings to apply a

“wholly disproportionate” test in _ fashioning

requirements applicable to a particular cooling water

intake structure. See, e.g., U.S. Br. 5, 27-28. We do not

read this past Agency administrative practice as

supporting EPA’s now far more expansive claim of cost-

benefit analysis authority under Section 316(b) or as

necessarily inconsistent with our own view of Section

316(b)'s plain meaning.

a. As conceded by the Solicitor General, EPA's

newly-claimed cost-benefit authority has a greater

“extent” and is “less stringent” than the narrow “wholly

disproportionate” test applied by EPA and _ state

agencies in individual permitting decisions. U.S. Br. d,

27, 41 n.5. In no manner is EPA’s current claim of

authority to engage in cost-benefit analysis under

Section 316(b) supported by 30 years of administrative

practice. U.S. Br. 27; Entergy Br. 23; UWAG Br. 37.

b. Moreover, the wholly disproportionate test is

not necessarily, in proper application, inconsistent with

Section 316(b)’s plain meaning — so long as it is applied

only when the cost is considered “wholly

disproportionate” because there are only de minimis

environmental benefits to be gained by the further

expenditures. In that circumstance, Section 316(b)’s

plain aning would be satisfied because EPA could

reasonably conclude that the “adverse environmental

reason had already been minimized. See pp. 29-30,

supra. Indeed, that is all EPA did in the permitting

decision in Seacoast Anti-Pollution League v. Costle,

597 F.2d 306, 311 (1st Cir. 1979), on which petitioners

and their amici repeatedly rely. See UWAG Br. 41; U.S.

Br. 27; Entergy Br. 57 n.25.*° There, EPA concluded

that a huge increase in cost was not warranted by an

insubstantial additional reduction in adverse

environmental impact on juvenile smelt or flounder

larvae. 597 F.2d at 309-311. Such reasoning is no

different from the Second Circuit’s ruling below that

Section 316(b) permits EPA to decline to require the

expenditure of higher compliance costs when the

adverse environmental impact to be achieved is

“essentially the same” as that obtained by a lower cost

option. See Pet. App. 26a.

Significantly, EPA’s understanding that it lacked

authority to compare costs and benefits under Section

“ Contrary to industry petitioners’ claims, the First Circuit did not

uphold the “wholly disproportionate” test, nor was ‘t asked to pass

on it, as the Solicitor General acknowledges. See U.S. Br. in Opp.

13.

316(b) continued through its Phase I rulemaking, long

after its announcement of a wholly disproportionate

test. In that rulemaking, the Agency made clear that it

“hald] not selected the best technology available on a

cost-benefit basis,” but on the basis of technological and

economic feasibility, an approach “analogous to the

economic achievability analysis it conducts for other

technology-based rules under sections 301 and 306 * *

*” 66 Fed. Reg. 65309 (2001). And, the site-specific

variance EPA included in the Phase I rule was based on

compliance costs “wholly out of proportion to the costs

EPA was considering in establishing the requirement at

issue” and therefore was a cost-cost variance, not a cost-

benefit variance. 40 C.F.R. § 125.85.

2. In all events, even if EPA had in the past

applied a “wholly disproportionate” analysis more

broadly, any such practice would have no significant

bearing on the resolution of this case. The first reason

is that EPA was not in any of those individual

permitting proceedings interpreting Section 316(b) ina

manner, such as a notice-and-comment rulemaking,

entitled to Chevron deference. Since EPA’s initial

Section 316(b) regulation was struck down on

procedural grounds, EPA has merely been filling the

existing regulatory gap during permitting as provided

for by Section 402(a)(1)(B). 33 U.S.C. § 1342(a)(1)(B).

The second reason is even more fundamental. In

no event can an agency administrative practice trump

a statute’s plain meaning. That is what this Court

meant when it said in Chevron that if the meaning of

the statutory language is plain, “that is the end of the

matter.” 467 U.S. at 842-43.

D. Resort to Legislative History Is Unnecessary

in this Case, but Its Examination Reinforces

Section 316(b)’s Plain Meaning

Given the statutory language’s plain meaning, as

buttressed by its structure and context, examination of

the legislative history is unnecessary. Only because

petitioners nonetheless purport to proffer some

legislative history in support of their claim, we offer

further discussion for those interested.

1. To support their claim, petitioners seize upon

an isolated floor statement by a single member of

Congress who describes the Section 316(b) standard in

terms of “practicability.” Indeed, EPA in its rulemaking

effectively treats this statement as though its words

were the statutory language. Pet. App. 252a. In no

event can this statement support the weight petitioners

claim.

Whatever one thinks of legislative history, it can

never add words to the statute, let alone significant

ones. But, that is precisely what petitioners seek to do.

They want to add to Section 316(b) the word

“practicable,” which nowhere appears in the statutory

provision. And, then, once added, they want to claim

that this same word is of enormous substantive import.

2. Amore in-depth examination of Section 316(b)’s

historical origins, moreover, leaves no doubt that

Congress intended the meaning that is plain on the face

of the statute. As described above (see pp. 6-14, supra),

in drafting the statute in 1972, the legislators engaged

in intense and protracted debate on the extent to which

EPA should be authorized to consider costs and also to

relate costs to benefits in establishing environmental

protection standards. This dispute went to the core of

the legislative policy debate.

a. The Senate and House initially had sharply

contrasting views on the issue, with the Senate favoring

a technology-based approach that denied EPA such

authority and the House favoring a water quality

approach that provided for such agency authority.

Following months of debate and precise drafting, the

two chambers finally reached agreement on a bill that

adopted the Senate approach in almost all significant

respects and, even then, had to override a veto triggered

by the President’s concerns about costs and benefits.

The formal legislative history, especially the

accompanying legislative reports, makes clear the

dramatic new direction that Congress ultimately

embraced. The legislators completely revamped the

federal water quality protection program in every

significant respect, including its primary reliance on

application of water quality standards. See EPA v.

California State Water Resources Control Board, 426

U.S. at 202. The less formal history, including the

numerous documents prepared by members of Congress

and committee staff leadership during the conference

proceedings — draft statutory language, memoranda,

and notes on meetings — tells the same story, only in

greater detail. See notes 6-8, supra.

The final legislative enactment rejected a series of

House proposals to confer on EPA the authority to

engage in a comparison of costs and benefits in

determining environmental protection standards.

Congress rejected providing EPA with such authority in

determining BAT (see p. 9, supra); in determining

whether BAT would even apply Ud. at 9-10): in

determining BDT for new sources (d. at 10); and in

determining controls on thermal discharges (zd. at 12-

13). Such a consistent manifestation of congressional

intent to refuse to enact language that would have

provided EPA with general authority to compare costs

and benefits leaves no room for petitioners’ effort to read

such authority back into the statute by way of strained

and unnatural readings of the words of the law

Congress did pass.

b. Not surprisingly, the drafting history of Section

316(b) is in full accord. As previously described (see pp.

5-6, 12-13, supra), Congress became aware of the cooling

water intake issue at first because of its relationship to

the thermal discharge issue. Congress ultimately

decided to break the two apart into two distinct

subsections. But, although the House ultimately

prevailed in its effort to allow for a biologically-based

exception to the application of technology-based

requirements in Section 316(a) — “the prolt]ection and

propagation of a balanced, indigenous population of

shellfish, fish, and wildlife” (83 U.S.C. § 1326(a)) — the

compromise the conferees finally struck in the closing

days of the conference did not include a similar

exemption in Section 316(b), let alone the sweeping cost-

benefit comparison authority EPA now seeks to assert.

See note 8, supra. Instead, Section 316(b) demanded a

technology-based standard that would “minimizle]

adverse environmental impact” using “best technology

available” and, unlike Section 316(a), would not relax

that standard based on achievement of a statutorily-

prescribed biological standard. The final bill also

rejected the original House proposal for Section 316(a),

which would have broadly authorized EPA to consider

the “relative costs and benefits” of control options and to

exempt a source if the costs bore “no reasonable

relationship to the economic and social benefits.” H.R.

11896, § 316(b)&(d), 1 Leg Hist. 1044. Here too,

Congress displayed its determination to deny EPA

authority to engage in cost-benefit analysis — an intent

wholly inconsistent with petitioners’ claim that

Congress delegated EPA such authority under Section

316(b).

E. This Court Must Respect the Policy Choice

Made by Congress

1. No less than in 1972, many today sharply

disagree about the use of cost-benefit analysis in the

establishment of environmental performance standards

and, relatedly, the wisdom of delegating to EPA the

authority to base those standards on its independent

weighing of costs and benefits. Some support such a

delegation (e.g., Cass R. Sunstein, Zhe Cost-Benefit

State: The Future of Regulatory Protection (2002)):

others oppose (e.g., David M. Driesen, Distributing the

Costs of Environmental, Health, and Safety Protection:

The Feasibility Principle, Cost-Benefit Analysis, and

Regulatory Reform, 32 B.C. Envtl. Aff. L. Rev. 1 (2005);

Frank Ackerman & Lisa Heinzerling, Pricing the

Priceless: Cost-Benefit Analysis of Environmental

Protection, 150 U. Pa. L. Rev. 1553 (2002)); and some

propose a middle ground (e.g., Richard L. Revesz &

Michael A. Livermore, ARetaking Rationality — How

Cost-Benefit Analysis Can Better Protect the

Environment and Our Health, 1-45 (2008); Sidney A.

Shapiro & Christopher H. Schroeder, Beyond Cost-

Benefit Analysis: A Pragmatic Reorientation, 32 Harv.

Envtl. L. Rev. 433 (2008)).

2. But, as the Solicitor General acknowledges,

“{t]he question presented here is not whether or to what

extent cost benefit analysis is a good thing.” U.S. Br. 14.

The only question before the Court is the strictly legal

question posed by this Court in granting the petition:

whether Congress authorized EPA in Section 316(b) to

compare costs and benefits in determining BTA. Unlike

several of petitioners’ amici (e.g., American Enterprise

Institute, Pacific Legal Foundation), many of those who

advocate greater use of cost-benefit analysis also

apprehend the limits of the judicial function. They

recognize the essential difference between what they

believe the law should be and what the law is; they

acknowledge that Congress has in fact widely rejected

the view that cost-benefit analysis should be the central

touchstone in all environmental lawmaking; and they

understand the reasons for that congressional

determination, even if they disagree with it as a matter

of policy. See Hon. Stephen Breyer, Breaking the

Vicious Circle — Toward Effective Risk Regulation, 41-42

(1993) (“There are institutional reasons * * * why

Congress may wish to write legislation of this kind. * *

* * * Congress may distrust the Executive Branch to

carry out a more broadly worded instruction with

sufficient vigor.”); see also 7d. at 57 (referring to “a

history of conflict arising out of what Congress saw as

an Executive Branch effort to curtail environmentai

regulation”); Robert H. Frank & Cass R. Sunstein, Cost-

Benefit Analysis and Relative Position, 68 U. Chi. L.

Rev. 323, 331 (2001) (“Presidents and courts have

circumscribed authority; they must act consistently with

federal statutes, which often forbid cost-benefit

balancing. Consider, for example, * * * the Clean Water

Act * * *, which contain[s] provisions banning agencies

from balancing costs against benefits.”); Cass R.

Sunstein, Which Risks First?, 1997 U. Chi. Legal F. 101,

134 (identifying BAT as one of the “most criticized

features” of the Clean Water Act because of the absence

of cost-benefit comparison authority); Eric A. Posner,

Controlling Agencies with Cost-Benefit Analysis: A

Positive Political Theory Perspective, 68 U. Chi. L. Rev.

1137, 1182 (2001) (“Agencies often provide implausible

estimates of costs and benefits, use different discount

rates and valuations across regulations, and even fail to

monetize or quantify all the relevant costs and

benefits.”);-see also Revesz & Livermore, Hetaking

Rationality, supra at 55-147 (detailing “eight fallacies”

of cost-benefit analysis).

3. Finally, the rulemaking at issue in this case

highlights the reasons why Congress decided against

authorizing EPA to strike its own cost-benefit balance

in determining BTA. See Economists Frank Ackerman, ~

et al. Amicus Br. 29-35; OMB Watch Amicus Br. II.C.

In purporting to engage in cost-benefit analysis, EPA

assigned no dollar value to one of the most significant

impacts of regulating cooling water intake structures:

saving aquatic organisms that remain in the ecosystem.

EPA monetized only fish that could be caught and sold

commercially. Pet. App. 482a-485a. By its own

admission, the Agency gave no dollar value to 98.2

percent of organisms saved by its own Phase II rule, let

alone those greater numbers that might have been

saved by more demanding performance standards, not

because they lacked any value, but because it was too

difficult to determine a meaningful market value for

them. See id. at 499a. This is just one of the many

limitations in the cost-benefit comparison that EPA

performed in the Phase II rulemaking. See J.A. 211-244

(comment letter of Dr. Frank Ackerman).**

It was just because of these kinds of limitations in

the application of cost-benefit analysis to the aquatic

environment, which had plagued the pre-1972 law, that

** Relatedly, several states complained about the enormous burden

that would be imposed on them, in their capacity as permitting

authorities, were they required to undertake the factfinding

necessary for cost-benefit comparisons. See J.A. 209-210, 252, 257-

58, 270-71.

Congress made a different policy choice in favor of

technology-based performance standards such as BTA.

Many believe that Congress’s bold move in 1972 in

choosing the technology-based approach over the prior

water quality and cost-benefit balancing approach is the

major reason for much of the Clean Water Act’s success

during the past several decades. See Environmental

Law Professors Amicus Br. I.C. But here, too, it is

ultimately for Congress to decide which regulatory

techniques will be most effective in addressing the

nation’s environmental problems.

“The question * * * is not what a court thinks is

generally appropriate to the regulatory process; it is

what Congress intended for these regulations.” £./. du

Pont de Nemours, 430 U.S. at 138; see A/i v. Federal

Bureau of Prisons, 128 S. Ct. 831, 841 (2008) (“We are

not at liberty to rewrite the statute to reflect a meaning

we deem more desirable. Instead, we must give effect to

the text Congress enacted * * *.”). “All the policy

reasons in the world cannot justify reading a

substantive provision out of a statute.” North Carolina

v. EPA, 531 F.3d 896, 910 (D. C. Cir. 2008).**

*4 Because the Second Circuit invalidated EPA's rejection of closed-

cycle cooling and its proffered “suite of technologies” on a ground

entirely separate and independent from the single issue on which

this Court granted review — EPA's authority to compare costs and

benefits — the lower courts remand of those aspects of the

rulemaking will, in all events, be undisturbed by the Court's

resolution of the question presented. The court's threshold ruling

was the absence of any adequate EPA explanation of the

rulemaking’s basis. The court made clear that this was an

independent error: “EPA was required to explain its judgment and

the basis for it” (Pet. App. 35a); and “|t}he record evidence alone

here * * * 1s oblique, complicated, and insufficient to permit us to

determine what the EPA relied upon in reaching its conclusion”

(td.). The court faulted EPA for failing to provide (1) a record that

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

EDWARD LLOYD RICHARD J. LAZARUS *

Environmental Law Clinic 600 New Jersey Ave., N. W.

Columbia University Washington, DC 20001

School of Law (202) 662-9129

435 West 116” St.

New York, NY 10027 REED W. SUPER

(212) 854-4291 116 John Street

Suite 3100

P. KENT CORRELL New York, NY 10038

300 Park Ave., 17° Fl. (212) 791-1881

New York, NY 10022

(212) 475-3070

*Counsel of Record

SEPTEMBER 2008

would permit a court “to discern * * * how the EPA determined

that the cost of closed-cycle cooling could not be reasonably borne

by the industry” (Pet. App. 33a); (2) an explanation of “its

statement that the suite of technologies ‘approach{es]’ the

performance of closed-cycle cooling” (id.); and (3) an “adequate

comparison in the Rule’s proposal, the final Rule or its preamble,

or the EPA’s submissions to this Court of the cffectiveness of

closed-cycle cooling and the group of technologies whose

effectiveness provided the basis for the Phase II Rule's performance

standards’ (id. at 33a-34a). An agency must at a minimum

“cogently explain why it has exercised its discretion in a given

manner.” See Motor Vehicles Manufacturers Ass'n v. State Farm,

463 U.S. 29, 48 (1983). In all events, should this Court reverse on

the sole question presented, it should leave for the Second Circuit

the question of the impact, if any, on that court's other rulings. As

described above, moreover, the Court should decline petitioners’

efforts to have this Court consider issues distinct from the question

presented, including the reasonableness of EPA’s ranges (see note

16, supra) and the need for site-specific BTA determinations (see

note 17, supra).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.