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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

Supine Court US

OCT 6 - 208
@ ObriCk OF THE CLERK.

Jn the Supreme Court of the United States

nn Se

No. 07-588, 07- nd 07-

SEH
ENTERGY CORPORATION, PETITIONER “S
Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

PSEG FossIL LLC, ET AL., PETITIONERS
Vv.
RIVERKEEPER, INC., ET AL.

UTILI'’Y WATER ACT GROUP, PETITIONER
v.
RIVERKEEPER, INC., ET AL.

On Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit

BRIEF OF ENVIRONMENTAL LAW PROFESSORS
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

JAMES R. MAY JARED A. GOLDSTEIN*

Widener University Roger Williams University
School of Law School of Law

4601 Concord Pike Bristol, RT 02809

Wilmington, DE 19803 (401) 254-4594

(302) 477-2060
* Counsel of Record

TABLE OF CONTENTS

SAR OE FAT 6 EE BO on ces crnnsesesessesesessesscsocensesees i
INTEREST OF THE AMICI CURIAE........0 a. 1
SUMMARY OF ARGUMENT.....000000.. 0... eee cee eeeeeeees 2
I Diss iiheidcaiiacichachdioailiatliicniailsielaieilbindnai taining 5
I. THE COST-BENEFIT BALANCING THAT
PETITIONERS ADVOCATE IS

FUNDAMENTALLY AT ODDS WITH THE
CLEAN WATER ACT'S TECHNOLOGY.-
SE Ae EIU wtccicnndcstcsemecindantiniiignacssibincndiesss 5

A. In the Clean Water Act, Congress Adopted
Technology-Based Standards That Do Not
Depend on Proof of Environmental Harm........ 6

B. None of the Clean Water Act’s Technology-
Based Standards Allow Regulators to
Undertake the Sort of Cost-Benefit
Balancing That Petitioners Advocate............. 12

C. The Clean Water Act’s Technology-Based
Regulatory Approach Has Dramatically
Improved Water Quality Without
Producing Absurd Results .......................02.02 18

Il. SECTION 316(b) ESTABLISHES A
TECHNOLOGY-BASED STANDARD THAT
DOES NOT AUTHORIZE BALANCING
ENVIRONMENTAL BENEFITS AND
ER RAST Eee CA EO oscisesccsssencesvensesssnncenssescsenes 24

A. The Absence of Express Prohibition to Set
Standards Based on Cost-Benefit Analysis
Is Not Tantamount to Congressional
Rin sintsinccvpsienisinsensinnnuceutmmeusminedowises 25

il

B. The Plain Text of Section 316(b) Does Not
Authorize Cost-Benefit Analysis .................... 26

Rae rtitinivvilenmnintnbeinindavnbeinibineienatntimiuiats 36

TABLE OF AUTHORITIES

Cases

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

ss SI sci ntiieiipinaniiiiien Sasasdiietadeiiatamaaniuaaianbunasbiaahiaiceehaciiiebil 13
Am. Textile Mfrs. Inst., Inc. v. Donovan, 452

LR NS Re RDI Ente Lae AN PONE 15, 18
Arkansas v. Oklahoma, 503 U.S. 91 (1992) .............. 10
Appalachian Power Co. v. EPA, 671 F.2d 801

I aa lisseniaibel 16
City of Arcadia v. EPA, 411 F.3d 1103 (9th Cir.

RAR A a Ee OE Da AN Se oe AEC Re 13
E.I du Pont de Nemours v. Train, 430 U.S. 112

ETSI, Ean anes eee ee eS ay EO 9-10, 18
EPA v. California, 426 U.S. 200 (1976) ...................... 8
EPA v. Nat] Crushed Stone Assn., 449 U.S. 64

TETRIS ste VIE ROT eS NE SSS 2 OO passim
Keene Corp. v. United States, 508 U.S. 200

EERE ARES SEL PRN. Siete Sen SO a aC eR 15
Missouri v. Illinois, 200 U.S. 496 (1906) .................... 6
National Wildlife Federation v. EPA, 286 F.3d

es Se tee as IID - snrcacecaccanseccnecessnensosecneccases 25
New York v. New Jersey, 256 U.S. 296 (1921) .......... 6
Public Citizen v. FDA, 831 F.2d 1108 (D.C. Cir.

i 7; or fe ae Oe I RS Arn FP ry eee A TD 24

1

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

a aleceiabiidaienaiioiaaiien 19
Weinberger v. Romero-Barcelo, 456 U.S. 305,

III ict (od tind incinineiininieieannimheneheniaadmmniaaenineiiend 7, 26
Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.

ITE cla iatsbininliisediiulicisinesinisidccnbdebiunciemoanbtineethine 13, 16
Whitman v. Am. Trucking Assns., Inc., 531 U.S.

ee I ccntihvsipiichdiipedhictipiiiiclateeminsbtananmetndnnenmidsntion 28-29

Legislative Materials

1972 House Report, Legislative History of the
Water Pollution Control Act Amendments of
1972, 117 Cong. Rec. 38,825 (Nov. 2, 1971),
reprinted in 2 Leg. Hist. at 1254........... 9, 11-12, 19
Clean Air Act of 1970, Pub. L. No. 91-604, 84
Stat. 1676, codified as amended at 42 U.S.C.
I a laccintiaeineiiann 10

Resource Conservation and Recovery Act, Pub.
L. No. 94-580, 90 Stat. 2795, codified as

amended at 42 U.S.C. §§ 6901-6992K ............ 10-11
Water Pollution Control Act of 1948 § 2(d)(1) ............ 6
Water Quality Act of 1965, Pub. L. No. 89-234, §

Sc ccamnpanisuaeiae 6
RE CLE TNT LE ie 9
EO Leena ee nee aE aI 12, 35-36
Fe aT 14, 16, 34
Ss cv dnnan deine ann ebiecananianndsiamennmneinnel 36
EL TEN TET
ee ame a eT ERR IE 36
Se a A SII vis cis ssnisnnceeanssonndensevedasaumnaneunedstasiutioni 10
42 U.S.C. § T501(3) occ ceccccececcececsesesevevecsevevevstevevevseee: 10

SP as UP TIED cxcenesecoscasvennvensanninmicennnnpinininiiidnes 10

lv
Administrative Materials

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

EPA, National Water Quality Inventory: Report
to Congress, 2002 Reporting Cycle: National
Studies of Water Quality (2007) ....................ceee 23
EPA, Water Quality Conditions in the United
States: A Profile from the 2000 National

Water Quality Inventory 1 (2001) ....................008 22
EPA, A Retrospective Assessment of the Costs of
the Clean Water Act: 1972 to 1997 (2000) ........... 23

EPA, A Benefits Assessment of Water Pollution
Control Programs Since 1972: Part 1, The
Benefits of Point Source Controls for
Conventional Pollutants in Rivers and

I cialis 23
EPA, National Water Quality Inventory: 1994
Report to Congress.” (1995)..................c0..secses. 22-23

Books and Book Chapters
Rodgers, Environmental Law: Air and Water

ES RI ee ee Oe 6, 12,17
Percival et al., Environmental Regulation, Law,
Science, and Policy, (5 Ed., Aspen 2006) ........... 19

Adler, Landman and Cameron, The Clean
Water Act 20 Years Later, Island Press
ad ac i ell 23

Articles

Cass R. Sunstein, Cost-Benefit Default
Principles, 99 Mich. L. Rev. 1651 (2001) .............30

Vv

Frank J. Barry, The Evolution of the
Enforcement Provisions of the Federal Water
Pollution Control Act, 68 Mich. L. Rev. 1103

GPTED secnindcorsninrseticuscersmnsscianminnianeienaseinminseussounsen

James R. May, The Rise and Repose of
Assimilation-Based Water Quality, Part I:
TMDL Litigation, 34 Envt L. Rep. 10247

Is ik I II aii iialiticodiienebanineiiinensdinnenes

James R. May and Maya van Rossum, The
Quick and the Dead: Fish Entrainment,
Entrapment, and the Implementation and
Application of Section 316(b) of the Clean
Water Act, 20 Vt. L. Rev. 373 (1995) ..............

Oliver A. Houck, The Regulation of Toxic
Pollutants Under the Clean Water Act, 21

Bevel. Le. Rep. 1O,BBS CIGGL) .....cccccccccscceccsecccceses

Oliver A. Houck, Of Bats, Birds and B-A-T: The
Convergent Evolution of Environmental

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

Wendy E. Wagner, The Triumph of Technology-
Based Standards, 2000 U. Ill. L. Rev. 83

IIE stiiencesnnisaeidisncsieminatesensctip etiieiiaieaalibioiasiniiaihitibhanntantsine

William L. Andreen, Water Quality Today—Has
the Clean Water Act Been a Success?, 55

PBR. Ee. HOV. GST, GER GRUDGE) on cccccccescsccscosscccesesses

INTERESTS OF THE AMICI CURIAE!

Amici are professors and scholars who teach,
research and write on environmental, natural
resources, and energy law. Amici have an interest in
seeing that the Court is informed on the appropriate
role of costs in the implementation of § 316(b) of the
Federal Water Pollution Control Act, 33 U.S.C. §
1326(b), commonly referred to as the Clean Water
Act.

Amici are William L. Andreen, the Edgar L.
Clarkson Professor of Law at the University of
Alabama School of Law; William Wade Buzbee,
Professor of Law at Emory Law School and Director
of the Emory Environmental and Natural Resources
Law Program; Ann Carlson, Professor of Law at
UCLA School of Law and the Co-Director of the
Frank G. Wells Environmental Law Clinic; Kim
Diana Connolly, Associate Professor of Law,
University cf South Carolina School of Law; Daniel
Farber, Sho Sato Professor of Law, Director,
California Center for Environmental Law & Policy
(CCELP) Co-Director, UCB Center for Catastrophic
Risk Management, University of California, Berkeley;
Robert L. Glicksman, Robert W. Wagstaff Professor of
Law, University of Kansas; Oliver A. Houck,

1 The parties have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part,
and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief.
No person other than amici, their institutions, or their
counsel made a monetary contribution to its preparation or
submission.

2

Professor of Law, Tulane University Law School;
Jeffrey Miller, Vice Dean for Academic Affairs and
Professor of Law, Pace University School of Law;
Thomas O. McGarity, Joe R. and Teresa Lozano Long
Endowed Chair in Administrative Law, the
University of Texas School of Law; Robert V. Percival,.
Robert F. Stanton Professor of Law, Director,
Environmental Law Program, University’ of
Maryland School of Law; Sidney Shapiro, Associate
Dean for Research and Development and University
Distinguished Chair in Law, Wake Forest School of
Law; Dan Tarlock, Distinguished Professor of Law
and Director of the Program in Environmental and
Energy Law, Chicago-Kent College of Law; and
Wendy E. Wagner, Joe A. Worsham Centennial
Professor, the University of Texas School of Law.

Amici file this brief solely as individuals and not
on behalf of the institutions with which they are

affiliated.

SUMMARY OF ARGUMENT

In the Clean Water Act, Congress adopted as a
national goal the restoration and maintenance of “the
chemical, physical, and biological integrity of the
Nation’s waters,” 33 U.S.C. § 1251, and chose
technology-based standards as the central regulatory
tools to achieve that goal. The technology-based
approach marked a sharp break with the water
quality-based approach that had governed until
1972, which predicated pollution control on
assessments of how much harm pollution causes
receiving waters and determinations of how much
pollution it was reasonable to tolerate. Congress
found this pre-1972 approach to be “inadequate in

3

every vital respect.” While the water quality-based
approach required complex scientific evaluations of
the effects of pollution on receiving water and
delicate policy determinations of how much pollution
was tolerable in each water body, the technology-
based approach adopted in the Clean Water Act is
much simpler, requiring EPA to focus on the capacity
of technology to reduce water pollution rather than
on the harms caused by pollution or on making the
policy determination of how much pollution it is
economically reasonable to tolerate.

Although Section 316(b) of the Clean Water Act
addresses cooling water intake rather than pollution
discharges, it is otherwise typical of the Clean Water
Act’s technology-based standards. It directs EPA to
set performance standards for cooling water intake
structures that reflect the “best technology available
for minimizing adverse environmental impact.”
EPA’s task in applying that section involves
identifying the “adverse environmental impacts”
associated with cooling water intake; identifying the
“available” cooling water intake technologies; and
determining which of those technologies is “best .. .
for minimizing” the identified impacts. By its plain
terms, Section 316(6) requires EPA to _ set
performance standards based on the capacity of
available technology to minimize impacts like
entrainment and impingement.

EPA’s task in setting the standards required by
Section 316(B) is little different than its task in
setting technology-based standards for eliminating
pollution discharges. Just as EPA must determine
which technologies eliminate the most pollution, EPA
must determine which technology minimizes impacts

4

like entrainment and impingement. In each case,
Congress has directed EPA to focus on technological
capacity rather than assessing how much
environmental har:n it is reasonable to tolerate.

Petitioners, however, mistakenly contend that
EPA should set standards under Section 316(b) by
attempting to balance the environmental! benefits
against the costs of doing so, and it should undertake
this cost-benefit balancing on both a national and a
site-specific basis. While this may or may not be a
sensible policy suggestion, Congress adopted a very
different policy when it enacted Section 316(b) of the
Clean Water Act. Congress, not the EPA, has already
weighed the costs and benefits and has concluded
that it is worth the costs to have intake structures
reflect the best available technology for minimizing
adverse impacts. Although Petitioners frame their
arguments in terms of statutory construction, they
are actually mounting a direct attack on the
technology-based regulatory approach Congress
chose in the Clean Water Act. They effectively ask
this Court to turn the clock back to 1971. Under
petitioners’ view, EPA can ignore the available
technology that most reduces the adverse impacts
associated with water intake, not because such
technology is unaffordable, but because EPA has
nearly unlimited discretion to decide that the
benefits to water quality do not justify the costs. Yet
this ambient-based approach reflects a policy that
Congress repudiated in adopting Section 316(b).

Petitioners mistakenly argue that regulating
cooling water intake structures without balancing
costs and benefits would be irrational and would lead
to absurd results. he history of water pollution

oO

regulation before 1972 demonstrates that Congress
wisely chose to adopt standards based on
technological capacity rather than balancing costs
and benefits. Experience under the Clean Water Act
vindicates Congress’s choice: the technology-based
standards adopted under the Clean Water Act have
produced significant environmental benefits without
causing economic disruption or the absurd results
Petitioners predict.

ARGUMENT
I. THE COST-BENEFIT BALANCING THAT
PETITIONERS ADVOCATE IS

FUNDAMENTALLY AT ODDS WITH THE
CLEAN WATER ACT’S TECHNOLOGY-
BASED APPROACH

Petitioners advocate a cost-benefit balancing
approach to Section 316(b), under which EPA makes
¢etailed assessments of the environmental harms
caused by cooling water intake technologies and then
compares the monetized benefits of avoiding those
harms against the costs of the technologies. Whatever
the merits of that regulatory approach, it is
fundamentally inconsistent with the Clean Water
Act. In enacting the Clean Water Act, Congress made
a sharp break with previous regulatory efforts that
predicated regulatory controls on a determination
that industrial activities cause more harm to water
quality than regulators considered reasonable.
Congress concluded that assessment of
environmental harm was a scientific morass that
impeded effective regulation and that water quality
was gravely threatened by giving regulators power to
determine how much environmental harm is

6

reasonable. Cost-benefit balancing of the _ sort
advocated by petitioners, in contrast, would return
regulation to the pre-Clean Water Act era.

A. In the Clean Water Act, Congress Adopted
Technology-Based Standards That Do Not
Depend on Proof of Environmental Harm

The most fundamental change wrought by the
Clean Water Act was Congress’s decision to dispense
with proof of environmental harm as a predicate to
curtailing activities that affect our nation’s waters. In
common law nuisance actions, water pollution could
only be enjoined if the plaintiffs made the very
difficult showing that pollution caused demonstrable
harms to specific water bodies.? Congress continued
this common law approach when it first enacted
federal water pollution law in the Water Pollution
Control Act of 1948, Pub. L. No. 80-845. Under that
Act and several subsequent ones, the federal and
state governments sought to keep water pollution to
acceptable levels by implementing site-specific water
quality standards. These standards varied depending
on each state’s designated uses for particular water
bodies—lakes and rivers designated for industrial use
were governed by lower water quality standards than
waters designated for fishing, swimming, and
recreation, for example.

Like cost-benefit balancing, the water quality
approach was based on the assumption that pollution

3 See, e.g., New York v. New Jersey, 256 U.S. 296, 311-12
(1921); Missouri v. Illinois, 200 U.S. 496, 517, 526 (1906).

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

, wVw .

7

was acceptable “up to a point of unreasonableness.”
Rodgers, Environmental Law: Air and Water § 4.1 at
13 (2d ed. 1986). Under the water quality-based
approach, regulatory controls could be imposed only
based on proof that particular pollution discharges
caused demonstrable environmental harms.®
Regulators were required to assess the effects of a
myriad of industrial pollutants on human health, fish,
shellfish, and other aquatic organisms; to determine,
based on the assessment of these effects, the
acceptable concentrations of each pollutant,
considering various uses of water bodies; and then
assess for each industrial discharger whether its
discharges contributed to pollution levels above the
acceptable concentrations. See Houck, supra note 4, at
10,528. The water quality-based approach proved
unworkable. Regulators could not determine with
precision what pollutant thresholds were safe for
human health and for aquatic life, or how to
implement them. Water quality-based programs
produced endless rounds of finger-pointing and little
cleanup.®

When Congress enacted the Clean Water Act in
1972, it concluded that the water quality-based
approach to pollution control had been a dismal

5 See Water Pollution Contro] Act of 1948 § 2(d)(1); Frank
J. Barry, The Evolution of the Enforcement Provisions of the
Federal Water Pollution Control Act, 68 Mich. L. Rev. 1103.
1105 (1970); Oliver A. Houck, The Regulation of Toxic
Pollutants Under the Clean Water Act, 21 Envtl. L. Rep.
10,528 (1991).

6 See Houck, sup:a note 4.

8

failure, indeed “inadequate in every vital aspect.”” As
this Court has explained, the failure “stemmed from
the character of the standards themselves, which
focused on the tolerable effects rather than the
preventable causes of water pollution.” EPA v.
California, 426 U.S. 200, 202 (1976). The process for
controlling pollution was far too cumbersome because
it depended on evaluating whether pollution
discharges caused environmental harms, = an
evaluation that was fraught with _ scientific
uncertainties. See id. at 204 (describing the
difficulties of “work[ing]) beckward from = an
overpolluted body of water to de.ermine which point
sources are responsible and which must be abated”).
As Congress concluded, assessments of environmental
harm were plagued with insolvable scientific
uncertainties:

We have seen a great deal of evidence
indicating that this water quality standards
system of regulation assumes more knowledge
about our complex ecosystem than we actually
have. ... [TjJhe history of our water pollution
control program suggests that State and
Federal governments will continue to founder

7 See Weinberger v. Romero-Barcelo, 456 U.S. 305, 316
(1982) (“Congress passed the 1972 Amendments because it
recognized that ‘the national effort to abate and control water
pollution has been inadequate in every vital aspect.”)
(quoting Sen. Comm. Rpt., S. Rep. No. 92-414, p.7 (1971),
reprinted in U.S. Code Cong. & Admin. News 3674); EPA uv.
Cal., 426 U.S. at 202 (declaring that the federal “program
based on water quality standards... proved ineffective”).

9

on the staggering complexity of this control
system.®

The complexity of the regulatory task allowed
polluters to exploit the scientific uncertainties to
delay implementation of environmentally sound
controls.9

In 1972 Congress sought to avoid saddling
regulators with the impossible task and “staggering
complexity” of assessing the environmental harms
caused by industrial activities and determinations of
the tolerable amounts of environmental harm,
embarking instead on a novel technology-based
approach. The Act replaced the federal goal of
reducing water pollution to acceptable levels with “the
national goal that the discharge of pollutants into the
navigable waters be eliminated.” 33 U.S.C. § 1251(a);
see also EPA v. Nat’ Crushed Stone Assn., 449 U.S.
64, 69 (1980). To achieve the goal, Congress turned to
the causes of water pollution and away from their
effects, directing that EPA establish technology-based
effluent limitations. These standards’ seek to
eliminate all discharges if such elimination is
“technologically and economically achievable.” E.1. du
Pont de Nemours v. Train, 430 U.S 126 (1976).}°

8 1972 House Report, Legislative History of the Water
Pollution Control Act Amendments of 1972, at 865. See also
1972 Leg. Hist. at 1304 (Sen. Cooper).

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

10 Water quality standards remain operable under the
Clean Water Act as a backup when uniform technology-based
standards are insufficient to meet local water quality
standards. See 33 U.S.C. § 1313; James R. May. The Rise and

10

The technology-based approach imposes
increasingly stringent effluent limitations geared to
technological capacity. See Train, 430 U.S. at 115 n.3
(“[A] discharger’s performance is now measured
against strict technology-based effluent limitations. .

to which it must conform, rather than against
limitations derived from water quality standards to
which it and other polluters must collectively
conform.”). Effluent limitations adopted in the Clean
Water Act do not require any assessments of the
environmental harms caused _. by _ pollution
discharges.!! Congress simply assumed that all water
pollution is harmful and should be eliminated. The
Clean Water Act therefore restricts’ pollution
discharges based on the capacity of technology to do
so and without any need for proof that discharges
cause any environmental harm.??

Repose of Assimilation-Based Water Quality, Part I: TMDL
Litigation, 34 Envt] L. Rep. 10247 (Env. L. Inst. 2004).

11 See Train, 430 U.S. at 115 n.3; Arkansas v. Oklahoma,
503 U.S. 91, 101 (1992).

12 Congress employed a similar technology-based regulatory
approach in the other major pollution control statutes,
eschewing any requirement that proof of environmental
harm be shown before pollution control measures were
adopted. For instance, in the Clean Air Act of 1970, Pub. L.
No. 91-604, 84 Stat. 1676, codified as amended at 42 U.S.C. §
7401-767lg, Congress’ established technology based
standards on “major emitting facilities,” (“best available
control technology), 42 U.S.C. § 7449(3), “major stationary
sources,” (“lowest achievable emission rate”), 42 U.S.C. §
7501(3) and 7503(a)(2); and for “major sources” of hazardous
emissions § 7412(d)(2) (“maximum degree of reduction ...
achievable”). See also Resource Conservation and Recovery
Act, Pub. L. No. 94-580, 90 Stat. 2795 (codified as amended

a

11

Rather than continue to predicate the protection
of waters on what Senator Muskie described as the
impossible‘ “search for a _ precise link between
pollution and water quality,” the Act sets standards
based on “the best control technology.” For existing
sources of water pollution, the first phase standard
required that, by July 1977, polluters meet
performance standards based on the “best practicable
control technology currently available” (BPT). 33
U.S.C. 1311(b)(1)(A), see Pet. App. 97a. The second
step was to require these dischargers to meet
stringent performance standards for conventional
pollutants based on “best conventional pollution
control technology” (BCT), and for toxic and
nonconventional pollutants based on the “best
available technology economically achievable” (BAT).
33 U.S.C. § 1311(b)(2)(A), (E), see Pet. App. 97a.
Rodgers, 2 Env. Law: Air and Water § 4.28 at 411.
New sources were to be required to use the “best
available demonstrated control technology, processes,
operating methods, or other alternatives” (BADT). 33
U.S.C. § 1311(b)(1)(B), see Pet. App. 97a.

Because the promulgation of technology-based
standards does not involve’ assessments of
environmental harm, they-are far easier to set and
enforce, and much more efficient to administer, than
other regulatory methods that aim to establish a link
between pollution discharges and harm. See Wendy
E. Wagner, The Triumph of Technology-Based
Standards, 2000 U. Ill. L. Rev. 83, 94-107 (2000).

at 42 U.S.C. §§ 6901-6992K) (requiring EPA to set
technology-based standards for facilities that dispose
hazardous wastes).

12

B. None of the Clean Water Act’s Technology-
Based Standards Allow Regulators to
Undertake the Sort of Cost-Benefit
Balancing That Petitioners Advocate

The enormously complex scientific and regulatory
undertaking petitioners suggest for Section 316(b)
would be anomalous within the context of the Clean
Water Act because it would focus regulatory attention
less on evaluation of technological capacity than on
when it is reasonable to allow environmental harms.
This is precisely the analysis Congress eschewed in
enacting the Clean Water Act. As the D.C. Circuit has
explained, the Clean Water Act does not embody the
“optimal pollution theory” that “that there is a level or
type of pollution that, while technologically capable of
being controlled, is uneconomic to treat because the
benefit from treatment is small and the cost of
treatment is large.”!4 Such a theory relies precisely on
the premise rejected by Congress that regulators have
“adequate information about the effects of pollution to
set an optimal test, and adequate political and
administrative flexibility to keep polluters at that
level,”25

14 Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1041 n.41
(D.C. Cir. 1978).

15 Jd.; see also City of Arcadia v. EPA, 411 F.3d 11038, 1105
(9th Cir. 2005) (“Technology-based regulations reduce levels
of pollution by requiring a discharger to make equipment or
process changes, without reference to the effect on the
receiving water.”); Am. Petroleum Inst. v. EPA, 858 F.2d 261,
265 (5th Cir. 1988) (“[T]he impact of a particular discharge
upon the receiving water is not an issue to be considered in
setting technology-based limitations.”)

13

Petitioners attempt to paper over the anomaly
that the technology-based standard in Section 316(b)
depend both on site-specific assessments of water
quality and determinations of how much
environmental harm is reasonable by arguing that all
of the Clean Water Act’s technology-based standards
actually allow for the sort of broad cost-benefit
balancing they advocate for Section 316(b). Entergy
Br. 38-42; UWAG Br. 35-37. Petitioners are wrong.
None of the Clean Water Act’s technology-based
standards involve the sort of cost-benefit balancing
they read into Section 316(b). As discussed above,
Congress deliberately chose not to hold the protection
of the nation’s waters hostage to the resolution of
insolvable scientific conundrums or determinations of
when environmental harms are reasonable.

Only two of the Clean Water Act’s technology-
based standards—“best practicable -ontrol technology
currently available’ (BPT) and “best conventional
pollutant control technology” (BCT), see 33 U.S.C. §
1314(b)(1)(B),(b)(4)(B)—<«all for even limited
consideration of the relationship between costs and
benefits, and those sections do not involve anything
like the broad cost-benefit balancing petitioners read
into Section 316(b).!© The limited cost-benefit analysis

16 Even if petitioners were right that the BPT an BCT
provisions authorize broad cost-benefit balancing, it would
undermine rather than support their position because the
express inclusion of language mandating cost-benefit
comparisons in applying BPT and BCT, and the absence of
such language in Section 316(b), can only be read to mean
that Congress did not intend that standards under Section
316(b) would be based on cost-benefits comparisons. See
Keene Corp. v. United States, 508 U.S. 200, 208 (1993)

14

set forth in BPT does not involve any assessment of
environmental harms or a determination of when it is
economically reasonable to accept such harms.
Instead, EPA must “consider” “the total cost of
application of technology in relation to the effluent
reduction benefits to be achieved from such
application.” 33 U.S.C. § 1314(b)(1)(B). The courts
have uniformly recognized that “effluent reduction
benefits” refers simply to how much pollution a
technology is capable of reducing and does not involve
any considerations of water quality effects. As the
D.C. Circuit succinctly stated, “Effluent reduction
occurs whenever less effluent is discharged.”!’ This
reflects Congress’s policy choice of directing EPA to
focus on the causes of pollution, not the effects.

What EPA does not do in setting performance
standards using BPT and BCT, and what EPA was
not authorized to do, is to attempt to assess the
environmental harms that are caused by the
discharge of pollutants and to determine whether the

(“When Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”).

17 Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1044 n.49
(D.C. Cir. 1978); see also Appalachian Power Co. v. EPA, 671
F.2d 801, 809 n.3 (4th Cir. 1982).

18 The same is true of Congress's directions for BCT, which
instruct EPA to consider “the reasonableness of the
relationship between the costs of attaining a reduction in
effluents and the effluent reduction benefits derived.” 33
U.S.C. § 1314(b)(4)(B). As with BPT, the “benefits” side of the
comparison used in setting BCT is the amount of pollution
that can be reduced, not benefits to water quality.

al

15

environmental benefits of preventing those harms are
worth the costs that would be imposed on polluters.
Congress has already established the national goal of
eliminating all water pollution, and EPA could not
properly conclude that advancing toward that goal is
not worth the costs. Accordingly, even when Congress
expressly authorized consideration of the relationship
between costs and benefits, Congress did not
authorize EPA to do what petitioners argue EPA
should do in setting standards under Section 316(b):
assess whether a dollar spent on technology saves a
dollar’s worth of fish.!9

The Clean Water Act’s other technology-based
standards provide even less support for the broad-
ranging cost-benefit balancing petitioners advocate
for Section 316(b). In setting effluent limitations
based on the “best available technology economically
achievable,” or BAT, EPA is not directed to compare
compliance costs with environmental benefits at all.
Instead, Congress directed that effluent limitations
under BAT “shall require the elimination of
discharges of all pollutants” if “such elimination is
technologically and economically achievable.” 33
U.S.C. § 1311(b)(2)(A). By its terms, BAT mandates
the maximum pollution’ reduction’ that is
technologically and economically achievable.?° In

19 See Rodgers, Environmental Law: Air and Water 432 (2d
ed. 1986) (explaining that “cost-sensitive” standards such as
BPT or BAT are far different than standards justified by
formal, monctized cost-benefit analyses, where “every dollar
spent on technology must return at least a dollar in enhanced
water quality’).

20 See National Crushed Stone Ass’n, 449 U.S. at 74 (BAT
“represents a commitment of the maximum resources

16

mandating BAT, Congress already undertook the
relevant balancing when it declared the national goal
of eliminating water pollution. Congress did not
conclude that pollution should be limited up to the
point when benefits outweigh costs; instead, in
mandating BAT, Congress ordered that pollution
should be eliminated to the maximum extent
technologically and economically possible.?}

In any event, this Court has already recognized
that the BAT provision does not authorize cost-
benefit balancing.?2 That conclusion, based on the
plain text, structure, and goals of the Clean Water
Act, is also fully supported by its legislative history.
As Senator Muskie, the chief Senate sponsor of the
Clean Water Act explained, “In making the
determination of ‘best available’ for a category or

economically possible to the ultimate goal of eliminating all
polluting discharges.”).

21 Petitioners’ claim that having EPA consider “such other
factors as [it] deems appropriate” authorizes cost-benefit
analysis for BAT is incorrect. Entergy Br. 9, 40. The word
“such” is to be interpreted in accordance with the words it
modifies, none of which suggest Congress has authorized
EPA to engage in a cost-benefit analysis in setting BAT. See
Environment America Br. Part I.

22 See EPA v. National Crushed Stone Assn., 449 U.S. at 71
(“Similar directions are given the Administrator for
determining effluent reductions attainable from the BAT
except that in assessing BAT total cost is no longer to be
considered in comparison to effluent reduction benefits.”);
Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 510
n.30 (1981) (stating that, in contrast to the BPT
determination, in making a BAT determination “the
Administrator is directed to consider total cost, but not in
comparison with effluent reduction benefits.”).

17

class, the Administrator is expected to apply the
same principles involved in ~making the
determination of ‘best practicable’... except as to cost-
benefit analysis.”23 Moreover, EPA’s longstanding
position and practice has been that BAT
determinations do not involve cost-benefit
balancing.*4

23 Legislative History of the Water Pollution Control Act
Amendments of 1972, 93rd Cong., lst Sess., 170 (Comm.
Print 1973) (emphasis added). Petitioners’ attempts to
counter Senator Muskie’s remarks by quoting those of
Representative Clausen ring hollow. Entergy Br. at 35.
Representative Clausen’s statement that Section 316(b)
should be read as to allow BTA at an “economically
practicable cost” is not inconsistent with Muskie’s position
that the “linguistically similar” BAT does not require a “cost-
benefit analysis.” The lower court’s “cost feasibility” approach
seems in concert with Representative Clausen’s view of the
role of costs in construing Section 316(b). To the extent the
comments appear to be inconsistent, the view of Senator
Muskie—a principal Senate sponsor of the Clean Water
Act—have long been read as authoritative. See, e.g., Train,
430 U.S. at 129; National Crushed Stone Assn., 449 U.S. at
71 n.10.

24 In the last thirty-five years, although EPA has
established hundreds of effluent limitations using BAT, see
http://www.epa.gov/waterscience/guide/industry.html, EPA
has not set BAT performance standards based on cost-benefit
analysis and has repeatedly resisted demands by industry to
do so. See, e.g., Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923,
936 (5th Cir. 1998) (agreeing with EPA that it could set BAT
without undertaking cost-benefit analysis); Rybachek v. EPA,
904 F.2d 1276, 1290-91 (9th Cir. 1990) (same). To be sure,
EPA has complied with Executive Order 12,291 (February
17, 1981) and its successors, which require agencies to
undertake cost-benefit analysis and submit them to the

18

Thus, contrary to petitioners’ suggestions, the
Clean Water Act's’ technology-based standards
authorize neither assessment of environmental
harms nor comparison of the benefits of avoiding
those harms against the costs of doing so. To
authorize EPA to conduct such wide-ranging cost-
benefit balancing under Section 316(b) would be
contrary to the technology-based regulatory approach
adopted in the Clean Water Act.

C. The Clean Water Act’s Technology-
Based Regulatory Approach Has
Dramatically Improved Water Quality
Without Producing Absurd Results

Petitioners and their amici warn gravely that
absurd results are sure to follow if EPA sets
standards for intake structures without balancing
costs and benefits. EPA will have no choice,
petitioners claim, but to require industry to adopt
cripplingly expensive technology with little or no
environmental benefits. See, e.g., Entergy Br. at 50-
51; API Br. at 4. If respondents prevail, petitioners
warn, EPA would require industry to incur “massive
technology costs” in a misguided attempt to save
every fish. Entergy Br. at 50. Indeed, EPA would be
compelled to tell a powerplant operating on the Great
Salt Lake to spend untold millions of dollars to
protect nonexistent fish. Entergy Br. at 50.

Office of Management and Budget before issuing significant
regulations, but those executive orders do not (and could not)
change the substance of the statutory standards set by
Congress.

19

The zeal of petitioners and their amici for cost-
benefit analysis knows no bounds, as they claim that
virtually every known calamity will occur if EPA
determines the “best technology available” without
balancing compliance costs against environmental
benefits. Petitioners and their amici apparently are
not joking when they claim that the failure to weigh
costs and benefits under Section 316(b) will cause
“massive impacts” on the American economy,” API
Br. 19; exacerbate climate change, NEI Br. 3-6, 22;
cause “substantial uncertainty under’ every
regulatory statute,” API 23; “destroy the ability of
regulatory agencies to regulate,” API 29; cripple the
nation’s energy supply by shutting down untold
baseload fossil fuel fired and nuclear power plants,
Entergy Br. 3, NEI Br. 19, and oil refineries and
platforms, API Br. 17; cause national blackouts and
brownouts, NEI Bt. 20, CCEEB Br. 12-14; have a
“very negative impact on the reliability of the
electrical supply system.” UWAG Br. 11; require 20
new coal-fired power plants to compensate for the
“energy penalty” of compliance, UWAG Br. 20-21,
NEI Br. 16, increase air pollution dramatically,
UWAG Br. 28; harm protected species including the
Florida Manatee, UWAG Br. 55-56; decrease national
security, API Br. 6, and undermine “fundamental
principles of cooperative federalism,” State’s Br. on
Behalf of Petitioners 3-7, all in furtherance of the
lower court's zeal to impose a “one size fits all”
stratagem, id. at 2, to save “every possible fish.”
Entergy Br. 36, 49.

20

Industry has long hurled _ similarly’ dire
predictions of doom at technology based standards.25
Yet such dire consequences have not occurred in
thirty-six years of experience under the Clean Water
Act. Implementing BPT, BCT, BAT, and BADT, EPA
has issued hundreds of effluent limitations under the
Clean Water Act that were based on the capacity of
technology to reduce pollution discharges, without
balancing compliance costs and _ environmental
benefits.2 These standards regulate discharges by
every major industrial sector. Petitioners cannot
point to any example, however, where the failure to
conduct broad-ranging cost-benefit balancing in
setting technology-based standards has led to absurd
results. Indeed, while industry has brought dozens of
suits to challenge effluent limitations set by EPA, in
no case has a court ruled that the absence of cost-
benefit balancing was irrational or led to absurd
results.

On the contrary, implementation of the Clean
Water Act’s technology-based effluent limitations has
dramatically reduced water pollution and improved
water quality across the nation. When the Clean
Water Act was enacted, only about one-third of
surface waters met water quality goals. By 2000, two-
thirds of waters met their goals.2? The Clean Water

25 See e.g., Percival et al., ENVIRONMENTAL REGULATION,
LAW, SCIENCE, AND POLICY, 564-568 (tailpipe cmission
standards) (5t» Ed., Aspen 2006).

26 See http://www.epa.gov/waterscience/guide/industry.html
(listing effluent guidelines by industrial category).

“7 See EPA, Water Quality Conditions in the United States:
A Profile from the 2000 National Water Quality Inventory 1

21

Act’s successes are directly related to the
promulgation of technology-based standards. Within
three vears after the promulgation of BAT standards,
industrial discharges of toxins into the nation’s
waters dropped from 412 to 197 million pounds per
year.28 To be sure, these technology-based effluent
limitstions have imposed considerable costs on
indusiry, as Congress anticipated. EPA has
estimated that the Clean Water Act has required
regulated industries to increase their pollution
control costs by $3 billion to $5 billion per year.2® No
evidence suggests, however, that these costs have
been crippling for any sector. If anything, the
opposite is true. Technology based standards have
helped to support the national economy and made the
nation more competitive. For example, EPA has
concluded that the annual monetized benefits
resulting from these water pollution efforts is $11
billion, far in excess of the costs.°° Accordingly, even

(2001), http://www.epa.gov/305b/200U0report/factsheet. pdf;
EPA, National Water Quality Inventory: Report to Congress,
2002 Reporting Cycle: National Studies of Water Quality
(2007).

28 EPA, National Water Quality Inventory: 1994 Report to
Congress.” (1995); Adler, Landman and Cameron, The Clean
Water Act 20 Years Later, Island Press (1993).

29 See EPA, A Retrospective Assessment of the Costs of the
Clean Water Act: 1972 to 1997 (2000) at 7-3, available at
http://www.epa.gov/waterscience/economics/costs. pdf.

30 See EPA, A Benefits Assessment of Water Pollution
Control Programs Since 1972: Part 1, The Benefits of Point
Source Controls for Conventional Pollutants in Rivers and
Streams (2000) at Vill, available at http://
www.epa.gov/waterscience/economics/assessment.pdf.

22

without the use of broad cost-benefit balancing, the
benefits from effluent limitations far exceeds the
costs. At the same time, there is no credible evidence
that the costs of Clean Water Act compliance have
adversely affected either the American economy or
the nation’s competitiveness.?!

As with the other technology based standards,
EPA has ample authority under the terms of Section
316(b) to avoid the absurdities petitioners predict.
For instance, petitioners and their amici repeatedly
and erroneously argue that, in the absence of cost-
benefit balancing, industry would be required to
spend enormous amounts of money to save even one
fish. See, e.g., Entergy Br. 36. That is plainly untrue.
Section 316(b) gives EPA discretion to conclude that
the loss of one fish is de minimis and that its survival
is not necessary for “minimizing = adverse
environmental impact.”°2 By the same _ token,

31 See William L. Andreen, Water Quality Today—Has the
Clean Water Act Been a Success?, 55 Ala. L. Rev. 537, 542
(2004) (reviewing studies).

32. The de minimis doctrine spares agency resources for
more important matters. Public Citizen v. FDA, 831 F.2d
1108, 1112 (D.C. Cir. 1987). Congress has much bigger fish to
fry than respondents’ “one fish.” EPA estimates that but for
intake structures, 3.4 billion more fish in the U.S. would
survive for at least one year, roughly the age of fecundity and
commercial viability for many species. See Pet. App. 122a,
168a-174a. Proper application of Section 316(b) will save
bilhons of fish, every year, and hundreds of billions of fish
over the lifetime of a typical powerplant. The far-fetched
hypothetical that EPA would concern itself over saving one
fish is belied by the massive environmental] reality actually
at issue.

23

petitioners are wrong to assert that, in the absence of
cost-benefit analysis, industry will be required to
employ costly control technology even when they are
operating in water bodies that have little or no
aquatic life. Technology-based standards do not
require that industry adopt particular forms of
technology but instead are performance standards
based on the available technology. See National
Wildlife Federation v. EPA, 286 F.3d 554, 558 (D.C.
Cir. 2002). A facility that may meet the performance
standard because of the nature of the water body in
which it operates thus would not need to adopt any
new controls.

If EPA were to adopt regulations implementing
Section 316(b) that resulted in any of the absurdities
petitioners predict, petitioners would of course be free
to challenge the standard as arbitrary, capricious,
and contrary to law under the Administrative
Procedure Act. The remote and entirely theoretical
possibility that EPA may someday adopt irrational
regulations implementing Section 316(b), however,
provides no basis to construe the provision contrary
to its plain text, which requires EPA to set standards
based on the best technology available for minimizing
adverse environmental impacts, and provides no
authority to set standard that purport to balance
costs and benefits.

33 Petitioner Entergy mistakenly relies on Weinberger v.
Romero-Barcelo, 456 U.S. 305, 316 (1982) to support reading
the Clean Water Act to provide EPA broad discretion.
Petitioners Br. 37. Weinberger involved prosecutorial
discretion, not statutory discretion..

24

Il. SECTION 316(b) ESTABLISHES A
TECHNOLOGY-BASED STANDARD THAT
DOES NOT AUTHORIZE BALANCING
ENVIRONMENTAL BENEFITS AND
COMPLIANCE COSTS

As with the provisions laying out the Act’s other
technology-based standards, Section 316(b) directs
EPA to determine performance standards based
solely on technological capacity—in this case, the
capacity of technology to minimize the adverse
environmental impacts of intake structures. As with
the Clean Water Act’s other’ technology-based
standards, Section 316(b) sets a standard that does
not involve any determination of when it is
economically reasonable to allow environmental
harms.

Petitioners, however, argue that Section 316(b)
should be read to authorize EPA to set standards for
intake structures based on cost-benefit analysis
simply because Section 316(b) does not expressly
prohibit it. As Petitioner Entergy declares, “[{iJn the
absence of statutory language clearly signaling
congressional disapproval, cost-benefit analysis is
always reasonable.” Entergy Br. 56. That argument,
however, runs counter to basic principles of statutory
construction and administrative law and _ is
inconsistent with the text and structure of Section
316(b).

25

A. The Absence of Express Prohibition to Set
Standards Based on Cost-Benefit Analysis
Is Not Tantamount to Congressional
Authorization

Petitioners repeatedly err in how they frame the
textual issue before this Court. They mistakenly
assert that EPA is entitled to deference because the
text of Section 316(b) does not “foreclose” or “forbid”
or “prohibit” cost-benefit analysis. See, e.g., Entergy
Br. 55; UWAG Br. 26, 31, 32. Under petitioners’
understanding of executive agencies’ authority, EPA
is free to set standards based on cost-benefit analysis
(or any other methodology it might choose) unless the
statute “unambiguotsly forbid[s]” it. UWAG Br. at 32.
To be sure, when it is unclear whether a statute
authorizes a particular regulatory approach, an
agency is entitled to deference if its chosen approach
is reasonable within the statutory context. See
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).
But there is no principle of statutory construction or
agency authority that remotely suggests that an
agency has power to do whatever it wants unless
Congress has unambiguously forbidden it.

By the same token, there is no support for the
notion that cost-benefit analysis is prohibited unless
Congress expressly authorized it, just as there is no
support for petitioners’ contrary suggestion that cost-
benefit analysis is presumptively authorized unless
Congress expressly prohibited it. As with other
questions of agency authority, whether cost-benefit
analysis is authorized depends on ordinary principles
of statutory construction. In the context of the Clean
Water Act, Congress gave careful consideration to the
question of how EPA should consider compliance costs

26

in setting performance standards. Whether those
standards should be based on cost-benefit analysis is
a fundamental policy choice that Congress cannot be
presumed to have concealed: “Congress, we have held,
does not alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions—it
does not, one might say, hide elephants in
mouseholes.” Whitman v. Am. Trucking Assns., Inc.,
531 U.S. 457, 468 (2001).

EPA would be empowered to set standards under
Section 316(b) based on cost-benefit analysis only if
Congress authorized it. Jd. (“[T]o prevail in their
present challenge, respondents must show a textual
commitment of authority to the EPA to consider costs
in setting NAAQS.”). The ordinary meaning and
structure of Section 316(b), however, show Congress
did not grant EPA the fundamental authority to
conduct a cost benefit analysis.

B. The Plain Text of Section 316(b) Does Not
Authorize Cost-Benefit Analysis

Petitioners and their amici strenuously and
extensively argue that it would be “rational,” Entergy
4, “reasonable,” UWAG Br. 4, “flexible,” ACC Br. 4, or
“sound,” AEI Br. 13, to authorize EPA to conduct
cost-benefit analysis under Section 316(b), but those
arguments are both wrong and beside the point. As
EPA acknowledges, “the question presented here is
not whether or to what extent cost-benefit analysis is
a good thing.” EPA Br. 14.°4 The issue instead is

34 Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 465,
(2001) (Scalia, J.) (“Were it ~ ot for the hundreds of pages of
briefing [industry challengers] have submitted on this issue,

27

whether Congress has authorized EPA to use a cost-
benefit analysis in applying Section 316(b). The text,
objective, and structure of Section 316(b) demonstrate
that it did not.*5

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

Under Section 316(b), EPA properly identified
entrainment and impingement of fish and shellfish as
the primary “adverse environmentai impacts”
associated with cooling water impact structures. EPA
Br. 2, 6; Pet. App. 3a, 226a. Having done so, EPA was
required to determine which of the “available”
technologies is “best” for “minimizing” those impacts.
A technology is available if it is “present and ready
for use,” but not if it is so costly as to be
unobtainable. See Environmental Respondents Br.
25. Once EPA identifies the pool of available
technologies, it must determine which of those
technologies is “best .. . for minimizing” impingement
and entrainment. “Best” means “surpassing all others
in excellence,” and “minimize” means to reduce to the
“smallest possible amount, extent, size or degree.” Jd.

one would have thought it. fairly clear that this text does not
permit the EPA to consider costs in setting the standards.”)

35 Petitioners’ reliance on Cass Sunstein’s writings is
inapposite. Entergy Br. 26 n.8. Professor Sunstein would
apply his cost benefit “default principles” only “/iJ/f Congress
has not referred to costs ... [or] resolved the question whether
costs should be considered.” Cass R. Sunstein, Cost-Benefit
Default Principles, 99 Mich. L. Rev. 1651, 1684-85 (2001)
(emphasis added). But of course the Clean Water Act does
refer to costs and resolves the questions concerning their
role, even as in Section 316(b) when it has not required a cost
benefit analysis.

28

25-26.38 Thus, under the plain terms of Section
316(b), technology that allows the smallest possible
amount of impingement and entrainment is the
“best” for “minimizing” those impacts.

Section 316(b), like the Clean Water Act’s other
technology-based standards, focuses on technological
capacity, not on how much environmental harm
should be allowed. Petitioners, however, read into
Section 316(b) nearly unlimited discretion to pick the
technology that is “best,” not at minimizing adverse
impacts, but “best” based on a “balancing of complex
goals.” Entergy Br. 32-33. Petitioners thus argue that
the “best technology available for minimizing adverse
environmental impact” is not necessarily the
technology that succeeds at reducing adverse
environmental impacts the most but instead is “the
most suitable or desirable technology available for
reducing such impact, to whatever extent the
decisionmaker believes appropriate in light of
competing values.” Entergy Br. 36. Petitioners simply
ignore the statutory language in asserting that EPA
can pick whatever technology it considers “best”
unmoored from a determination of whether the

38 See James R. May and Maya van Rossum, The Quick and
the Dead: Fish Entrainment, Entrapment, and _ the
Implementation and Application of Section 316(b) of the
Clean Water Act, 20 Vt. L. Rev. 373, 385-86 (1995).
Petitioner's elaboration on the word “minimize” defies
etymology. Petitioner Br. 34. Using a word improperly does
not vitiate the word’s actual meaning. Just because someone
uses one word (here, “minimize”) when the meaning of
another word is intended (“reduce) (gas consumption,
workplace mishaps) does not mean that “minimize” now
means “reduce.”

29

technology is best “for minimizing = adverse
environmental impact.”

Likewise, petitioners’ construction of how EPA
should assess the “adverse environmental impacts”
ignores the Clean Water Act’s technology-based
approach. Petitioners construe the phrase to give
EPA authority to consider when protecting aquatic
life will produce “actual environmental benefit.”
Entergy Br. 2.; id. at 46-49; UWAG Br. 6-11.
Petitioners assert that EPA should consider that all
fish are not created equal; some fish are “nuisance
fish that federal and state regulators want to
eliminate,” while other fish are worthy of being
saved. Entergy Br. 23. According to petitioners, a loss
of fish may cause varying degrees of “adverse
environmental impact” depending on how aquatically
rich the water body is. Entergy Br. 48; UWAG Br. 9-
10. Petitioners thus would transform Section 316(b)
into a water quality-based approach, under which
regulators would attempt to assess exactly how much
environmental harm a loss of fish and other
organisms would cause in the context of particular
water bodies and then determine whether such harm
is acceptable.

Petitioners’ approach is precisely what Congress
rejected when it chose to ground the protection of
waters on technological capacity.°9 As the Fourth
Circuit explained, setting technology-based standards
based on local environmental conditions “would

39 See, e.g., Appalachian Power Co. v. EPA, 671 F.2d 801, 809
n.3 (4th Cir. 1982); Hercules, Inc. v. EPA, 598 F.2d 91, 116
(D.C. Cir. 1978); Association of Pacific Fisheries v. EPA, 615
F.2d 794, 805 (9th Cir. 1980).

30

violate the plain intent of the [Clean Water Act] that
effluent limitations and guidelines are to be based
entirely upon technological standards and may not be
varied or modified due to the nature or quality of the
receiving waters.”4°

In Section 316(b), Congress did not assign EPA
the task of assessing the value of fish and other
aquatic life lost by entrainment and entrapment, nor
is EPA authorized to make the policy determination
of how many fish it is economically reasonable to
protect. Congress simply directed EPA to examine the
capacity of available technology to minimize
impingement and entrainment (or any other impacts
EPA properly identifies) and to set a performance
standard based on the technology that best minimizes
those effects. As with the determination of
technology’s capacity to reduce water pollution,
Section 316(b) focuses on technological capacity to
minimize entrainment and impingement and does not
call on EPA to determine how much impingement
and entrainment should be curtailed.??

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

42 It is simply wrong to say that interpreting Section 316(b) to
authorize a cost-benefit analysis “reflects 30 years of agency
practice” Entergy Br. 23, or a “longstanding policy.” EPA Br.
in passim. If anything, EPA’s position for four decades was
just the opposite, that “there is nothing in Section 316(b)
indicating that a cost/benefit analysis should be done.” In re
Public Service Co. of N.H. et al. (Seabrook Station Units 1
and 2) National Pollutant Discharge Elimination System
Permit, 10 Env’t Rep. Cas. (BNA) 1257, 1261 (EPA June 17,
1977) (emphasis added); see J.A. 60. To the extent it has
considered cost effectiveness under Section 316(b), it has not
compared marginal costs with marginal environmental!

31

2. The Text of Section 316(b) Does Not
Mandate a Particular Technology

Contrary to petitioners’ suggestion, Section 316(b)
does not mandate a particular technology—closed
cycle cooling towers—to minimize the adverse
environmental impacts of every existing intake
structure. Entergy Br. 13-14. The lower court did not
construe Section 316(b) as demanding either closed
cycle cooling for every Phase II facility, or that
industry pay “hundreds of millions or billions per
facility regardless of the cost or actual environmental
benefit,” Entergy Br. 2. The lower court did not read
the statute as mandating “the survival of every
possible fish.” Entergy Br. 36. Instead, as the lower
court held and Petitioners concede, Entergy Br. 14,
EPA has within its discretion expressed “best
technology available for minimizing adverse
environmental impact” as a range of performance
parameters, including an 80 to 95 percent reduction
in impingement and a 60 to 90 percent reduction in
entrainment for listed waters, such as the Great
Lakes, estuaries and tidal marshes, compared to a
baseline “zero technology alternative,” 69 Fed. Reg. at
41,590-41,601; Pet. App. 260a.

Thus, Section 316(b) authorizes EPA to enable
industry to comply by choosing among a “suite” of
innovative technologies, including (1) advanced

benefits. Rather, EPA has considered the monthly “marginal
rate increase” to customers of instituting a particular
technology, such as closed-cycle cooling towers. May and van
Rossum, 471-479. In reality, EPA has not seen fit to conduct
a cost-benefit analysis in applying Section 316(b) to an
existing facility.

32

removal and return systems, namely, traveling, disk,
drum, and fixed screens; (2) active exclusion
technologies, namely, wedgewire screens, perforated
pipes, radial wells, porous dikes, and artificial filter
beds; and (3) physical and behavioral diversion and/or
avoidance technologies, such as louvers, velocity caps,
and (4) physical and hydraulic barriers such as sound
barriers or bubble curtains. Id; see May and Van
Rossum, at 456-459 (discussing availability of each
means of best technology available under Section
316(b)); State Br. as Respondent, 9-12 (discussing
state implementation of each means). These other
available technologies also happen to be a fraction of
the cost of closed-cycle cooling.

Section 316(b) does not, huwever, authorize EPA
to weigh costs against quantified environmental
benefits in establishing its performance standard.
But for EPA’s mistaken reliance on a cost-benefit
analysis that Section 316(b) does not authorize, the
performance parameters might have been more
stringent, say, calling for a 90 to 98 percent reduction
in impingement — instead of 80-95 percent — and a 80
to 95 percent reduction in entrainment — instead of
60-90 percent. While EPA has discretion to express
technology based standards under Section 316(b) in
terms of a range of performance efficiency, it does not
have the discretion to conduct a cost-benefit analysis
in establishing the standard.

3. The Statutory Context of Section
316(b) Does Not Support Cost-Benefit
Balancing on a Site-Specific Basis

There is also no support for the proposition that a
permit writer (either EPA or the state) has “general

33

authority” to conduct an additional cost-benefit
analysis in implementing an “alternative” to best
technology available on a site-specific basis. Entergy
Br. 9, 15, 20. Essentially petitioners argue that the
section sub silentio provides for variances from
national performance standards.

Yet unlike other sections in the Act, Section 316(b)
does not provide for local variances of any kind, not to
mention based on a cost-benefit analysis. When the
Clean Water Act provides for local site-specific
variances it does so only under limited circumstances,
and never based on a local cost-benefit analysis. And
as mentioned above, it is assumed intentional when
Congress authorizes in one place in the statute what
it withholds in another.

In reality, the Clean Water Act severely restricts
the extent to which EPA and states may grant
variances from technology-based standards in
consideration of site-specific conditions. See e.g., 33
U.S.C. §1311(m) (variances from BPT and BCT under
limited specified conditions for certain discharges of
into “deep waters of the territorial seas.”); 33 U.S.C.
§1311(g)(1), (2)(A) — (C) (modifications from BPT for
certain pollutants); 33 U.S.C. §1311(n) (from BAT due
to “fundamentally different factors.”) Section 316(b),
on the other hand, does not authorize site-specific
variances, including those based on a local cost-
benefit analysis.

The plain text of Section 316(b) stands in sharp
contrast to its immediate neighbor, Section 316(a),
which allows for local variance for the discharge of

34

heated water. 33 U.S.C. § 1326(c).43 Close comparison
of Sections 316(a) and 316(b) supports the notion that
Section 316(b) sets national standards, as opposed to
allowing local variances based on costs or other
factors, not to mention a plenary cost benefit
analysis. Section 316(a) allows the permit writer
(either EPA or an authorized state agency) to issue a
variance whenever a permittee demonstrates that a
lmit on discharge of heated water is more stringent
than necessary to assure “a balanced indigenous
population of shellfish, fish and wildlife in and on the
body of water into which the discharge is to be made.”
33 U.S.C. § 1316(a) (emphasis added). Section 316(b),
on the other hand, requires EPA to set BTA to
minimize adverse environmental impact whenever it
sets national performance based standards under
Sections 301 or 306. It does not allow agencies to
grant variances from BTA due to consideration of
local populations of shellfish. fish, or wildlife, or for
any other reason.

These subsections operate differently for good
reason: Section 316 is the result of compromise
respecting point sources that have intake structures.
Environmental Respondents Br. 7-9. The Senate
version of the section would have been solely
technology-based. The House version would have
been solely based on local water conditions. The
compromise was to have Sections 316(a) & (c) require

43 Section 316(a) governs discharges of “heat,” which the
Clean Water Act defines as a “pollutant,” 33 U.S.C. § 1362(6),
and therefore subject to the technology-based standards for
point source discharges of pollutants, 33 U.S.C. §§ 1311
(existing sources) & 1316 (new sources).

35

technology-based standards for discharges of heated
water subject to a 10-year variance based on local
water conditions, but to have Section 316(b) retain a
national technology-based approach for minimizing
adverse environmental impact. J/bid. This is a
sensible compromise that the language of the CWA
clearly reflects.

CONCLUSION

For the reasons given above, as well as those
expressed in the briefs of respondents and their
amici, this Court should affirm the judgment of the
Second Circuit.

JAMES R. MAY JARED A. GOLDSTEIN*

Widener University Roger Williams
School of Law University

4601 Concord Pike School of Law

Wilmington, ™. 19803 Bristol, RI 02809

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

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0048%3A30. Public record. Not legal advice.