ELR Citation: ELR 20067
No(s). 07-588 (U.S. Apr 1, 2009)

The U.S. Supreme Court held that the U.S. Environmental Protection Agency (EPA) permissibly relied on cost-benefit analysis in setting national performance standards for cooling water intake structures and in providing for cost-benefit variances from those standards. The rule, promulgated under Clean Water Act (CWA) §316(b), aims to protect fish, shellfish, and other aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power-producing facilities. Below, the U.S. Court of Appeals for the Second Circuit concluded that cost-benefit analysis is impermissible under CWA §316(b) and that the regulations' site-specific cost-benefit variance provision was unlawful. But EPA's view that §316(b)'s "best technology available for minimizing adverse environmental impact" standard allows consideration of the technology's costs and of the relationship between those costs and the environmental benefits produced is a reasonable interpretation of the statute. Considering §316(b)'s text, and comparing it with the text and statutory factors applicable to parallel CWA provisions, it was well within the bounds of reasonable interpretation for EPA to conclude that cost-benefit analysis is not categorically forbidden. Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.