# Amicus Curiae Brief — Utility Water Water Act Group Group v. Riverkeeper, Inc. (Nos. 07-597, 07-588, 07-589) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0048%3A37 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2009 ## Text S\ laeay i “3 eT \ (a) %\ sp) OCT 6 - 2008 Nos. 07-588, 07- Ve onsoy’ OF oe THE CLUKK ee ee sae _—_—— = Jn the Supreme Court of * United States — SE” -_——- — —- ENTERGY Guciiniaiaines Petitioner, Qy2>% 2 Vv. ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents. PSEG FossiL LLC, ET AL., Petitioners, Vv. RIVERKEE” EF , INC., ET AL., Respondents. Utiuity WaTER Act GRoupP, Petitioner, V. RIVERKEEPER, INC., ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Second Circutt PRIEF FOR THE STATES OF ILLINOIS, [OWA, MARYLAND, MONTANA, OHIO, AND OKLAHOMA, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE COMMONWEALTH OF PUERTO RICO AS AMICI CURIAE IN SUPPORT OF RESPONDENTS Micwae- A. Scopro* Lisa MADIGAN Solicitor General Attorney General of Illinois 100 West Randolph Street JANE ELINOR Notz Chicago, Illinois 60601 Deputy Solicitor General (312) 814-3698 * Counsel of Record {additional counsel listed on signature page] Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001 i QUESTION PRESENTED Whether § 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. n TABLE OF CONTENTS Page i yy 8 Be 4. yy: | ne i TABLE OF AUTHORITIES .................. ill INTEREST OF THE AMICI CURIAE ........... HT I a arn ad oa mist oe wn kid Re 2 SUMMARY OF ARGUMENT .................. 9 a6 Oe et Mates bi WS eel ieee 10 I. SITE-SPECIFIC CONSIDERATIONS ARE PROPERLY ADDRESSED THROUGH THE VARIANCE PROCESS, WITHOUT RezsortT To CostT-BENEFIT ee ee vi oe ieee oo hae eens ws 10 Il. Use Or Cost-BENEFIT ANALYSIS POSES SIGNIFICANT PRACTICAL PROBLEMS FOR STATE PERMITTING AUTHORITIES ................. 17 Te eee ee oT ee ee 23 ill TABLE OF AUTHORITIES Cases: Page Alabama Power Co. v. Costle, 636 F.2a 323 (D.C. Cir. 1979) .............- 14 Appalachian Power Co. v. Train, og Ff fe ey: re 4 EI. du Pont de Nemours & Co. v. Train, ee I cc ue rewucaeeeue 12,13 E.P.A. v. Nat'l Crushed Stone Ass'n, I I ee ian he a te oe a 12 Monsanto Co. v. Kennedy, 613 F.2d 947 (D.C. Cir. 1979) ......... ieee ae Riverkeeper, Inc. v. United States Environmental Protection Agency, 358 F.3d 174 ee oa his eee ae eae 2 passim Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir. 1978) ............. 13 Statutes and Rules: Ne ee tae aS eM 4 ee iio Pn a Bd 4 Se EE 6 ok be eee eeu s ees ols 12 iV oN ee ere 16 EE in ow coe een we ewe enews passim CL Tree rT rer Tre 6 BE err rrr 6 et eee eee ere Tere 6 oe ee ee 6 I nv cn ce bh ceecndcenecues 5 Oe OM ong cccco ccc cekccucees 5 Gar ae Oe ID no vec cccceecenaces 18 40 C.F.R. § 125.95(b)(6)GiM(A) ................. 19 40 C.F.R. § 125.95(b)(G)GiM(C) ..... 2.2.22. 19 40 C.F.R. § 125.95(b)(6)(ii)(E) .. 2... eee. 19 66 Fed. Reg. 65,256-01 (2001) ............. 20, 21 69 Fed. Reg. 41,576 (2004) .............. passim Miscellaneous: Frank Ackerman & Lisa Heinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, 150 U. Pa. L. Rev. FCAT sd host, (ed ace darken & kaso Ra 17 Vv James R. May & Maya K. 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) .......... Thomas O. McGarity, A Cost-Benefit State, 50 Peps. To: TG. Fe 6 4.450054c00anennnes 1 INTEREST OF THE AMICI CURIAE The amici have two critical interests in the outcome of this case. First, the amici are devoted to preserving the aquatic ecosystems on which they depend. Absent stringent regulation, cooling water intake structures have devastating effects on fish and other aquatic organisms, which are not only important environmentally, but also serve critical commercial, economic, and recreational purposes. Both because of the importance of aquatic ecosystems and because many have already been substantially compromised, the amici have a vital interest in protecting these ecosystems from additional, undue predation by human activity. Second, because the States share responsibility for enforcing the Clean Water Act (“Act”) with the federal Environmental Protection Agency (“EPA”), the amici have a powerful interest in a regulatory system that is workable in practice and provides for accurate and consistent results. Yet under the EPA regulations challenged here, permitting authorities are required to undertake complicated and costly assessments that Congress has not authorized and that EPA itself failed to complete. The amici are concerned that requiring state agencies to conduct such assessments would strain state resources, encourage needless disputes between state permitting authorities and applicants, slow the permitting process—delaying the issuance of timely permits—and likely lead to inconsistent or inaccurate permitting decisions. 2 STATEMENT 1. Many power plants and other industrial facilities cool their equipment with water drawn from oceans, rivers, lakes, and streams using one of two basic “cooling water intake structures.” Pet. App. 6a, 12a n.3.' A “once-through” cooling system takes in water, sends it through the facility once to absorb heat, and returns it directly to the water body at a much higher temperature. /d. at 12 n.3. By contrast, a “closed-cycle” system draws in an initial quantity of water and then continually recirculates it between heat-bearing machinery and an external cooling device, such as a cooling tower or pond. /bid. Because new water is added to closed-cycle systems solely to compensate for evaporation, they use 96 to 98 percent less fresh water (and 70 to 96 percent less salt water) than comparable once-through systems. 69 Fed. Reg. 41,576, 41,601 1.44 (2004). 2. The environmental impact of withdrawing large amounts of cooling water is “staggering.” Riverkeeper, Inc. v. United States Environmental Protection Agency, 358 F.3d 174, 181 (2d Cir. 2004) (hereafter “Riverkeeper I’). In the rule at issue here, EPA determined that cooling water intake structures may cause “multiple * * * undesirable and unacceptable environmental impacts,” including: entrainment andimpingement; reductions of threatened and endangered species; damage to critica] aquatic organisms, including ' Citations are to the appendix to the petition for certiorari in Utility Water Act Group v. Riverkeeper, Inc., No. 07.597 (U.S.). 3 important elements of the food chain; diminishment of a population’s compensatory reserve; losses to populations including reductions of indigenous species populations, commercial fisheries stocks, and recreational! fisheries; and stresses to. overall communities and ecosystems as evidenced by reductions in diversity or other changes in system structure and function. 69 Fed. Reg. at 41,586.” Notwithstanding these devastating effects, the nation’s power plants and factories continue to withdraw more than 279 billion gallons of cooling water each day. See Riverkeeper J, 358 F.3d at 181. EPA estimates that the use of cooling water by the thermoelectric power industry accounts for fully 47 percent of all withdrawals from U.S. waters. 69 Fed. Reg. at 41,586. Because of the vast quantities of cooling water used, and the associated destruction of fish and other organisms, the power industry “{cjollectively * * * constitutes the country’s single largest consumer of aquatic life.” James R. May & Maya K. 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, 381 (1995). Indeed, EPA has determined that the nation’s larger power plants alone destroy the equivalent of more than 3.4 billion fish and * “Impingement” occurs when larger organisms, like fish and shellfish, are crushed against the screens at the mouth of the intake pipe, while “entrainment” refers to smaller organisms, like plankton, eggs, and larvae, being sucked into the pipe and killed hy the system's pressure and heat. 69 Fed. Keg. at 41,586 4 shellfish each year. 69 Fed. Reg. at 41,586. This means that a single power plant may impinge more than one million adult fish in a three-week period. See Riverkeeper I, 358 F.3d at 181. 3. In 1972, Congress amended the Clean Water Act “to restore and maintain the chemical, physical, and biological integnty of the Nation’s waters,” 33 U.S.C. § 1251(a), “the national! goal” being to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife,” 33 U.S.C. § 1251(a)(2). Because of the devastating ecological! impacts of impingement and entrainment, Congress called on the EPA to remedy the problem by “requir[ing] that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available [(“BTA”)}] for minimizing adverse environmental impact.” 33 U.S.C. § 1326(b). Congress recognized that even as the Act’s pollution control efforts improve overall water quality, the effects of impingement and entrainment could inhibit the recovery and preservation of aquatic ecosystems. In 1976, EPA issued its first regulations pursuant to § 316(b), which the Fourth Circuit remanded to EPA without addressing their merits. 69 Fed. Reg. at 41,583-41,584 (discussing Appalachian Power Co. v. Train, 566 F.2d 452 (4th Cir. 1977)). After years passed without new regulations, environmental groups sued EPA and won a consent decree requiring the agency to establish a timetable to issue rules under § 316(b) in three phases. 69 Fed. Reg. at 41,583. Phase Il regulates intake structures at new sources, Phase II covers large, existing power plants, and Phase 5 Ill regulates other power plants and industrial facilities. Thbid. The Phase I Rule requires use of a closed-cycle cooling system or alternative technology capable of a comparable reduction in impingement and entrainment. 69 Fed. Reg. at 41,601. Because closed- cycle systems withdraw substantially less water than once-through systems, they destroy far less aquatic life. 69 Fed. Reg. at 41,601 & n.44. EPA estimates that a closed-cycle system may reduce impingement mortality and entrainment by as much as 98 percent, when compared with a once-through system. Jbid. On judicial review, the Second Circuit largely upheld the Phase I Rule. See Riverkeeper I, 358 F.3d at 181. 4. On July 9, 2004, EPA issued its Phase II Rule. Because large, existing power plants withdraw approximately 214 bilhon gallons of cooling water each day, 69 Fed. Reg. at 41,586, this rule regulates the vast majority of withdrawals. EPA declined to select closed- zycle cooling as BTA for large, existing power plants—as it had for new plants under the Phase | Rule—and instead adopted national performance standards based on reductions in impingement mortality and entrainment associated with a “range” of technologies (including fine- and wide-mesh screens, aquatic filter barrier systems, barrier nets, and fish return systems) that EPA “determined to be commercially available for the industries affected as a whole.” 69 Fed. Reg. at 41,598-41,599, 41,601. The performance standards require as little as 60 percent reduction in entrainment and 80 percent reduction in impingement mortality. 40 C.F_R. § 125.94(b)(1), (2). Thus, the Phase II standards require far less than the 6 98 percent reductions achievable with closed-cycle cooling. The Phase II Rule also allows for two site-specific exceptions from the general requirements—a “cost-cost variance” and a “cost-benefit variance.” 40 C.F.R. § 125.94(a)(5)(i), (ii). The former is available if a plant demonstrates that its costs of complying “would be significantly greater than the costs considered by the Administrator * * * in establishing the applicable performance standards,” while the latter applies where a plant shows that its compliance costs “would be significantly greater than the benefits of complying with the applicable performance standards.” J/bid. Variance requests are evaluated by the applicable permitting authority, including a state permitting authority operating under the National Pollution Discharge Elimination System (“NPDES”). 69 Fed. Reg. at 41,593.° If a facility makes either required showing, the permitting authority “must make a site- specific determination” of BTA and impose “site- specific alternative requirements” that are “as close as practicable to the applicable performance standards.” 40 C.F.R. § 125.94(a)(5)G), (ii). Or the permitting authority may conclude that additional measures are unnecessary, either because of their “significantly greater costs” under the cost-cost variance or because . NPDES is the permitting process though which the requirements of the Act and its regulations are enforced. 33 U.S.C. § 1342(b). Every facility operating a cooling water intake structure must obtain a permit from either EPA or an EPA- approved state agency. /bid.; see also 40 C.F.R. § 123.1(d). Forty- five States and the Virgin Islands are authorized to administer the NPDES permitting program. 69 Fed. Reg. at 41,582. 7 the “costs would be significantly greater than the benefits” under the cost-benefit variance. Jbid. 5. On petition for review, the Second Circuit remanded for additional explanation of EPA’s choice of BTA and, if necessary, for a new determination of BTA. Pet. App. 4la-42a. The court noted that “the record is unclear as to the basis for the EPA’s selection of the suite of technologies as BTA,” and suggested that EPA rejected closed-cycle cooling as BTA only by using cost- benefit analysis in violation of § 316(b). Pet. App. 34a- 4ta. Because the Rule’s cost-benefit variance authorized site-specific determinations of BTA based on cost-benefit analysis, the court rejected it as well. Pet. App. 63a. The court did not reject outright the cost-cost variance. Instead, the court noted that although § 316(b) does not expressly authorize EPA to allow permitting authorities to grant variances from gencrally applicable requirements, it did not doubt that EPA could allow variances so long as the agency “guide[d] the permitting authority to consider appropriate factors and allow[ed] relaxation of the Rule’s uniform technology requirements only insofar as necessary to account for unusual circumstances not considered by the Agency during its rulemaking.” Pet. App. 55a-56a n.22 (brackets in original) (quoting Riverkeeper 1, 358 F.3d at 193-194). However, because of procedural problems in the promulgation of the cost- cost variance and because the variance is expressly premised on the validity of the BTA determination, which itself was remanded for further explanation, the court found it necessary to remand the cost-cost 8 variance, too, for additional proceedings. Pet. App. 56a-57a. On April 14, 2008, this Court granted certiorari on the question “[w]hether Section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the ‘best technology available for minimizing adverse environmental impact’ at cooling water intake structures.” 9 SUMMARY OF ARGUMENT This Court should affirm the judgment below for all of the reasons set forth in state-respondents’ brief. Petitioners’ contrary position is impossible to square with the plain language of § 316(b), the provision’s context within the Clean Water Act, and the legislative history of the 1972 Clean Water Act amendments. This brief provides two additional reasons—both of particular significance to the States, who share responsibility for enforcing the Clean Water Act—for affirming the decision below. First, petitioners and their amici incorrectly argue that, without the authority to undertake a cost-benefit analysis, neither EPA nor state permitting authorities will be able to account for local circumstances by providing for site-specific compliance alternatives. As the Second Circuit correctly concluded, a properly crafted variance provision would address site-specific considerations, without weighing costs and benefits in making these individualized determinations. Neither petitioners nor their amici successfully identify any circumstance under which site-specific relief from generally applicable standards would be appropriate under the Clean Water Act but somehow unavailable without a cost-benefit variance provision. Second, requiring state permitting authorities to perform cost-benefit analysis on a case-by-case basis would strain state resources, fuel needless disputes between permit writers and applicants, and prolong the permitting process. Given the complex nature of biological systems and the concomitant complexities associated with quantifying and monetizing environmental benefits, any such analysis is a time- 10 consuming and resource-intensive process. Moreover, because EPA failed to complete its own benefits analysis for the Phase II Rule, and therefore undervalued environmental benefits, there is a real risk that States also will be unable to fully value the benefits associated with reductions in impingement and entrainment, yielding inconsistent or inaccurate permitting decisions. For these practical reasons, States should not be expected to perform cost-benefit analysis when EPA itself did not deliver it and when not required by Congress. ARGUMENT Petitioners and their amici fail in their effort to overcome language and history with a_ policy argument—that only a cost-benefit analysis can account for loca] factors specific to individual sites. In fact, the variance process already accounts for these factors, without departing from the