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

Part 07.508 2 0888

Nos. 0 , 07-589 & 07-597

Iu The

Supreme Court of the Anited States

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ENTERGY CORPORATION, Petitioner

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.

+

PSEG FOSSIL LLC, et al., Petitioners

V.

\O"'

OS NS

RIVERKEEPER, INC., et ai.

.

UTILITY WATER ACT GROUP, Petitioner

V.

RIVERKEEPER, INC., et ai.

*

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

¢

BRIEF FOR AMICI CURIAE CLEAN AIR

TASK FORCE & CLEAN WATER ACTION -

NEW ENGLAND, ET AL. AS AMICI CURIAE

SUPPORTING RESPONDENTS

RIVERKEEPER, ET AL.

+

ANN BREWSTER WEEKS

CLEAN AIR TASK FORCE

18 Tremont Street, Suite 530

Boston, MA 02108

(617) 624-0234

Counsel of Record for Amici Curiae

Clean Atr Task Force, Clean Water

Action — New England, HealthLink

Kentucky Resources Council, and

Ohio Environmental Council

COCK F LAW RBRIFF PRINTING CO 800) 725-4964

OR CALL COLLECT (402) 442-2831

i

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ..........cccccscsccossccssccceees ii

INTEREST OF AMICI CURITAE.......................... 1

INTRODUCTION AND SUMMARY OF THE

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I iii piicthiiilscsieonsieiinshdiehciehiiaatigiliiiitatipicsinniatatiniein 4

1. The Plain Language of Clean Water Act

Section 316(b) Does Not Jpso Facto Yield

the Outcomes Assumed by Industry Peti-

tioners and their Amici....................ceeeeeeee: 4

2. The Plain Language of Section 316(b)

Allows EPA To Consider Adverse Energy

and Environmental Impacts in Setting

SRR Reet or ne ean ae peered 5

3. Industry Petitioner’s Parade of Horribles

is Discredited Because it is Based on

Flawed EPA Modeling ....................cseceeeeees 6

4. Real-world Experience With Cooling

Water Intake System Improvements Be-

lies Industry’s Dire Predictions................. Ll

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il

TABLE OF AUTHORITIES

CASES:

Logan v. U.S., __ U.S. __, 128 S.Ct. 475

SEES rarer saree cea TUNMET SO DANES Nw

Public Citizen v. U.S. Dep't of Justice, 491 U.S.

440 (1989) (Kennedy, J., concurring).................

Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir.

STE diinsnsiccornnnnernessnasionniaiteiiennqintaniniideianinininmnnnainenainaion

SET P cinctnnscsinnitetnccunsesntentonnanetanntoniegiontndsimensnesnienets

STATUTES AND REGULATIONS:

Clean Water Act:

Be Ey Oe SID ccietirisnsicttindaciananniesinnsenpebinatovesinees

National Pollutant Discharge Elimination

System — Proposed Regulations to Establish

Requirements for Cooling Water Intake

Structures at Phase II Existing Facilities, 67

Fed. Reg. 17,122 (April 9, 2002).....................0+

National Pollutant Discharge Elimination

System — Final Regulations to Establish Re-

quirements for Cooling Water Intake Struc-

tures at Phase II Existing Facilities, 69 Fed.

Reg. 41,576 (July 9, 2004)......ccccccccccscscseseseeeseees

iii

TABLE OF AUTHORITIES — Continued

ADMINISTRATIVE AUTHORITIES:

EPA Response to Public Comment — National

Pollutant Discharge Elimination System —

Regulations to Establish Requirements for

Cooling Water Intake Structures at Phase II

Existing Facilities; Author ID Number:

EE iniichistlaiieincininnciideinniintedaceinnsibsiiibiaeneennen

EPA Response to Public Comment — National

Pollutant Discharge Elimination System —-

Regulations to Establish Requirements for

Cooling Water Intake Structures at Phase II

Existing Facilities; Author ID Number:

IE bevisscnnsentninindinenuntadddinnidpcanessetinninnes

OTHER AUTHORITIES:

Brief of Amici Curiae HealthLink, et al., Surf-

rider Foundation v. U.S. EPA, No. 04-6692-

ag(L) (2d Cir. July 26, 2005) .....cccccssessesseseeesseens

Brief of Amici Curiae Economists Frank Ac-

kerman, et al., Entergy Corp. v. EPA, U.S.

Nos. 07-588, 07-589 and 07-597 (September

UTE scceinicaclasdeistsedidigndnsedeniiccdpuminempeabstiniedinanbiatiaiesens

Bethlehem Energy Center CCGT Power Plant,

New York Power Technology, http://www.

power-technology.com/projects/bethlehem/ (last

Re Ge Bh BD cena dceccctcnscccctsvcecsscnccecess

Modernizing El Segundo’s Power Generating

System, http://www.elsegundorepowering.com

(last visited October 1, 2008) ............0.00000cee

Page

1

INTEREST OF THE AMICI CURIAE

Amici curiae Clean Air Task Force, Clean Water

Action-New England, HealthLink, Kentucky Resources

Council, and The Ohio Environmental Council (collec-

tively, “Environmental Amici”) are not-for-profit envi-

ronmental and public health organizations working to

improve environmental quality in their respective

regions and throughout the United States. Specifically,

Environmental Amici, on behalf of their thousands of

members and contributors, have been advocates on

energy-related environmental matters, with the goal of

reducing the significant environmental, public health,

and climate impacts of the fossil-fueled power plants

that are subject to the regulations under review in this

case. Environmental Amici provided legal and technical

comments to the record on the Environmental Protec-

tion Agency (“EPA”) rule at issue, and submitted an

amicus brief in the case challenging that rule before the

United States Court of Appeals for the Second Circuit.

Amici therefore bring an informed perspective on the

question whether and to what extent adverse air quality

and climate impacts will necessarily result from standard

setting under the plain text of section 316(b) of the Fed-

eral Water Pollution Control Act, 33 U.S.C. § 1326(b).'

.

‘ No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

persons other than amici or their counsel made a monetary

contribution to its preparation or submission. All of the parties

to this suit have consented to the filing of this brief.

2

INTRODUCTION AND SUMMARY OF ARGUMENT

Environmental Amici offer this brief to the Court

from our singular perspective as a group of organiza-

tions that work in the public interest on energy,

climate change, air pollution and water pollution

issues related to the nation’s existing electric generat-

ing system. In particular, this brief rebuts the asser-

tions made by Industry Petitioners Entergy Corp., et

al. (“Entergy”), Utility Water Act Group (““UWAG”),

and their supporting amici the Nuclear Energy

Institute (“NEI”) (collectively, “Industry”), that ad-

verse air and climate change impacts will result as a

matter of course if section 316(b) of the Federal Water

Pollution Control Act, 33 U.S.C. § 1326(b) (“section

316(b)”), is read to prohibit EPA from using cost-

benefit analysis in setting Best Technology Available

(“BTA”) performance standards for existing power

plant cooling water intake structures.

As an initial matter, we agree with the brief filed

by Respondents Riverkeeper, et a/., and incorporate

the arguments it contains, particularly that the plain

language of section 316(b) does not authorize EPA to

set performance standards under section 316(b) based

on cost-benefit analyses. Riverkeeper Br. at 22-53.

Moreover, we agree that this understanding of the

statute’s language does not require EPA “to make

BTA determinations on the broadest categorical basis

conceivable ... ignorling] any and all differences

among facilities and their locations.” Jd. at 31 (refut-

ing assertions made in UWAG Br. at 43-50; NEI Br.

22-25; Nebraska, et a/. Amicus Br. 8-10).

3

Industry argues, however, that the plain lan-

guage of section 316(b) should be disregarded, be-

cause they assert that its application will yield such

significant adverse environmental results that Con-

gress could not have meant it to mean what it says.

Entergy Br. at 52 (citing Logan v. U.S.,__ U.S. __,

128 S.Ct. 475, 848 (2007)); UWAG Br. at 27-28. They

allege that if section 316(b) is read, as it must be, to

prohibit the use of cost-benefit analysis in standard

setting, the result will be increased air and climate-

forcing emissions caused by additional fuel use asso-

ciated with more protective cooling water systems.

Entergy Br. at 5-6, 49-51; UWAG Br. at 27-28; NEI

Br. at 3-4, 21-22. But Industry’s arguments do not

present genuinely absurd results — indeed, they are

based on false legal premises and inaccurate techni-

cal analyses, and they do not comport with real-world

experience with retrofitting cooling water intake

systems. As such, Industry has failed to provide

sufficient justification for the Court to disregard the

plain text of the statute. See Public Citizen v. U.S.

Dep't of Justice, 491 U.S. 440, 470-472 (1989) (Ken-

nedy, J., concurring in the judgment).

S

4

ARGUMENT

1. The Plain Language of Section 316(b) Does

Not Ipso Facto Yield the Results Assumed by

Industrial Petitioners and Their Amici.

Industry’s contentions are based on the premise

that if EPA implements the statute as it is written —

without using cost-benefit analysis tools to select BTA

— the plain meaning of the statute will necessarily

cause EPA to issue rules on the broadest categorical

basis conceivable, for example, requiring that all

existing power plants must apply closed cycle or dry

cooling technology.’ Riverkeeper, et al. have amply

demonstrated in their briefs that this is an entirely

flawed assumption as a legal matter. Riverkeeper Br.

at 26-33. For, “[slection 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 avail-

able technology.” Jd. at 30. Indeed, as found by the

Second Circuit, the statute provides EPA authority to

select the best technology’ for “minimizing adverse

* See, e.g., NEI Br. at 13, n.17 (speculating that “(if the EPA

is foreclosed from considering the costs of implementing pro-

posed technologies, except in the limited respects permitted by

the court of appeals, respondents will almost certainly contend

that the agency must mandate adoption of closed-cycle cool-

ing.”).

* As an initial matter, EPA must select the “optimally best

performing” technology as the basis for BTA, but then “must .. .

ascertain whether the industry as a whole can reasonably bear

the cost of the adoption of the technology, bearing in mind the

(Continued on following page)

5

environmental impact,” considering air quality and

energy efficiency concerns, and thereby avoiding the

“parade of horribles” that animate the Industry

briefs. Riverkeeper, Inc. v. EPA, 475 F.3d 83, 100 n.12

(2d Cir. 2007); see also Riverkeeper, Inc. v. EPA, 358

F.3d 174, 194-95 (2d Cir. 2004) (allowing EPA, in

setting section 316(b) standards for new power

plants, to consider the air pollution associated with

projected energy efficiency losses).

2. The Plain Language of Section 316(b) Allows

EPA To Consider Adverse Energy and Envi-

ronmental Impacts in Setting BTA Stan-

dards.

Industry conflates two separate issues in its

attempt to inject questions related to energy and

adverse environmental impacts into the case before

this Court. As explained above, these issues are

relevant to the goal of establishing section 316(b)

standards, that is, the minimization of adverse en-

ergy and environmental impacts from cooling water

intake. Such questions, however, are not directly

relevant to EPA’s authority under section 316(b)

concerning the use of cost-benefit analysis. See Br. of

Amici Curiae Economists Frank Ackerman, ef al.,

Entergy Corp. v. EPA, U.S. Nos. 07-588, 07-589 and

07-597 (September 2008) at 25-26 (describing the

aspirational and technology-forcing character of the [Clean

Water Act].”). Riverkeeper, Inc. v. EPA, 475 F.3d 83, 100 (2d Cir.

2007).

6

differences between a cost-benefit calculation on the

one hand, and, on the other hand, crafting a regula-

tion based on its fundamental goals and the applica-

tion of a cost-effectiveness analysis to choose between

technologies that meet those goals).

In fact, EPA did consider the energy penalty

issues raised by Industry during the course of the

Phase II cooling water rulemaking, and found them

negligible. Specifically, in its description of the mar-

ket impacts that could result if closed cycle cooling

were established as BTA for power plants on sensitive

waterbodies, EPA noted that capacity closures of 1.1

percent in the Northeast and 1.3 percent in the West

“would represent an insignificant percentage of total

baseline capacity in [those] regions.” National Pollut-

ant Discharge Elimination System — Proposed Regu-

lations to Establish Requirements for Cooling Water

Intake Structures at Phase II Existing Facilities, 67

Fed. Reg. 17,122, 17,186/1 (April 9, 2002). It is fur-

thermore noteworthy that the Second Circuit has

remanded the rule to the Agency for further explana-

tion related to energy efficiency and production

concerns raised below by the parties. Riverkeeper, 475

F.3d at 100 n.12.

3. Industry Petitioners’ Parade of Environ-

mental Horribles Is Discredited Because it is

Based On Flawed EPA Modeling.

Furthermore, Industry’s assertions that signifi-

cant air pollution emissions increases (implicating

7

public health and global warming impacts) will

assuredly follow if this Court effectuates the plain

language of section 316(b)* are based on inaccurate

technical assumptions made by the Agency .n its

rulemaking below.

Environmental Amici have previously brought

these technical flaws to the attention of EPA, in the

rulemaking record underlying this case, and to the

Second Circuit Court of Appeals, in a brief as amici

curiae. In that brief, and in the record before the

Agency on the rulemaking in this case, Environ-

mental Amici show that EPA’s (now Industry’s) asser-

tions of a “permanent” energy penalty and associated

incremental air quality and climate impacts are

simply overstated, and in some instances wrong.

Brief of Environmental Amici HealthLink, eft ai.,

* Entergy argues that a plain reading of section 316(b)

necessarily will result in the application of technologies that are

“less effective at cooling and therefore reduce the efficiency and

electric output of the facilities using them” —- resulting in

increased air pollutant emissions, causing additional public

health and climate impacts. Entergy Br. at 5. Entergy raises the

spectre of a “permanent ‘energy penalty’ [that] can be up to 5

percent or more of a facility’s output, ... negatively affect{ing]

energy supply and electric s, stem reliability. ... [and)requiring

greater consumption of fuels ... which, in turn, generally

results in increased air emissions of carbon dioxide and other

pollutants.” Jd. at 5, 6 (citing, inter alia, 69 Fed. Reg. 41,576,

41,605 (July 9, 2004)); see also UWAG Br. at 55 (citing 69 Fed.

Reg. at 11,605-06, and broadly asserting that “changes to the

cooling system often create significant adverse side-effects, most

notably energy penalties and increased air emissions.”).

8

Surfrider Foundation v. U.S. EPA, No 04-6692-ag(L)

(2d Cir. July 26, 2005) (“HealthLink Br.”).

Environmental Amici and other citizen groups

first pointed out in comments to EPA on its proposed

rule that the Agency’s energy penalty and related air

emissions assumptions were overstated and based on

a flawed computer modeling. 316bEFR.061.001 at

1927. Specifically, in developing its projections of the

rule’s impacts on electricity markets, the Agency

relied on the IPM 2000 computer model of the domes-

tic electric power market that simulates how power

generators are likely to respond over time to various

“user-specific constraints” such as new environmental

regulations. 67 Fed. Reg. at 17,181/3.

Environmental Amici demonstrated that the

Agency’s projections based on IPM 2000 were un-

sound due to a critical flaw in the model, which

significantly underestimated the amount of new

generating capacity to be built in 2000-2013.

316bEFR.061.015 at 1946. Consequently, even the

market impacts cited in the proposed rule, which EPA

itself claimed were insignificant,’ were inadvertently

exaggerated by the Agency. As we pointed out to the

Second Circuit, when properly “viewed in the context

of the enormous investments being made in new

power generation, it became evident that [even] a

closed cycle cooling rule would not appreciably affect

the reliable supply of energy in the United States.”

* 67 Fed. Reg. at 17,186/1

10

Industry’s dire predictions are warranted — and

certainly does not show that they are so significant as

to justify disregarding the plain text of section 316(b).

In particular, even assuming arguendo that a plain

reading of the statute would result in a closed-cycle

cooling rule, the U.S. Department of Energy (“DOE”)

found that the “incremental air emissions” due to a

rule requiring closed-cycle cooling retrofits, “are not

large on a percentage basis (generally, less than one

percent).” 316bEFR.010.103 at 261. Additionally the

DOE noted that “widespread installation” of closed

cycle cooling systems at coal-fired power plants

“would likely not impact the ability of the electric

generation sector to meet more stringent air emis-

sions caps.” Id. at 257.

Finally, some of the Industry arguments are

simply speculative. For example, NEI posits that if

EPA cannot rely on cost benefit analysis to set cooling

water intake structure standards, the costs of install-

ing retrofit cooling technologies could cause some

nuclear facilities to shut down (or not), thereby

possibly requiring increased utilization of fossil

generation to meet electricity demand (or not),

thereby perhaps yielding higher air pollutant emis-

sions including carbon dioxide (or not). See NEI Br. at

14. But this argument by its very nature is non-

conclusive. NEI does not assert that implementation

of the Act, as written by Congress necessarily must or

will yield this result.

11

4. Real-world Experience With Cooling Water

Intake System Improvements Belies Indus-

try’s Dire Predictions.

In stark contrast to the disaster scenarios offered

up by Industry before this Court, the decision to

convert to newer, cleaner cooling water intake struc-

ture systems is often taken as part of a package of

overall upgrades and pollution controls, such that the

net result is a more efficient plant overall, using

much less water and emitting far fewer air pollut-

ants. For example, information available at Modern-

izing El Segundo’s Power Generating System, http://

www.elsegundorepowerffig.com (last visited October

1, 2008), describes the win-win-win situation at the

El Segundo power plant in California. The owners

and operators of that existing facility have decided to

replace a once through cooling system with dry cool-

ing as part of a repowering project, eliminating the

use of Santa Monica Bay seawater as a coolant. As a

result of that project, the overall efficiency of the

plant will be improved, energy production is expected

to increase by up to 560 megawatts, and overall air

emissions from the facility will be significantly re-

duced, compared to the existing facility. Jd.

Similarly, at the Bethlehem Energy Center, near

Albany, New York, the decision by PSEG Power New

York to replace an antiquated once-through cooling

system with a hybrid closed cycle/dry cooling system

came as part of a decision to replace an older existing

plant with a new, more efficient, lower polluting plant

with almost twice the capacity of the existing facility.

12

See Bethlehem Energy Center CCGT Power Plant,

New York Power Technology, http://www.power-

technology.com/projects/bethlehem/ (last visited

October 1, 2008). At that facility, cooling water with-

drawals from the Hudson River (formerly on the

order of 500 million gallons per day) were reduced by

over 98 percent, while energy generating capacity

increased from 400 to 750 megawatts and overall air

emissions were reduced by 95 percent. Jd.

Far from the parade of horribles predicted by

Industry petitioners and their amici, these case

studies indicate that cooling water system upgrades —

even dramatic changes to the most environmentally

protective technologies — are not necessarily accom-

panied by energy capacity losses and air pollution

increases.

e

CONCLUSION:

The concerns raised by Industry do not “demon-

strate the kind of absurd consequences that would

justify departure from the plain language of the

statute.” Public Citizen, 491 U.S. at 470-472 (Ken-

nedy, J. concurring) (noting that the absurd results

doctrine should be applied only in the limited situa-

tion “where the result of applying the plain language

would be, in a genuine sense absurd, i.e., where it is

quite impossible that Congress could have intended

the result”). They are not as a legal matter the neces-

sary consequences of implementing the Clean Water

13

Act as it is written, and they are based on flawed

technical assumptions. Nor are industry’s concerns

supported by real-world experience with the applica-

tion of newer, more effective power plant cooling

water intake structures.

Environmental Amici therefore respectfully

submit that this Court should find that there is no

legal basis to disregard the plain language of section

316(b) of the Clean Water Act.

Respectfully submitted,

ANN BREWSTER WEEKS

CLEAN AIR TASK FORCE

18 Tremont Street, Suite 530

Boston, MA 02108

(617) 624-0234

OCTOBER 2008