Forum
U.S. Supreme Court
Case Status
Decided
Docket Number
07-589
Term
2008 Term
Oral Argument Date
December 02, 2008
Questions Presented
In PSEG Fossil LLC, et al. v. Riverkeeper, Inc., et al.:
1. Whether the Second Circuit erred by holding that §316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), bars any use of cost-benefit analysis, in conflict with decisions of several other circuits and the precedents of this Court.
2. Whether the Second Circuit erred by concluding that §316(b) bars the use of restoration measures as a compliance alternative to “minimiz[e] adverse environmental impact,” in conflict with decisions of other courts of appeals.
In Entergy Corporation v. EPA, et al.:
1. Whether the CWA provides EPA authority to impose new requirements under Section 316(b) of the Act, 33 U.S.C. § 1326(b), with respect to existing cooling water intake structures?
2. Whether a court should accord Chevron deference to an agency’s interpretation of its own statutory jurisdiction?
3. Whether Sections 301 and 316(b) of the CWA, 33 U.S.C. § 1301, 1326(b), limit EPA’s weighing of costs and benefits only to the Second Circuit’s “cost effectiveness” test?
In Utility Water Group v. Riverkeeper, Inc., et al.:
1. Whether § 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), which specifies that standards set under §§ 301 or 306 of the statute shall require that cooling water intake structures reflect the “best technology available for minimizing adverse environmental impact,” prohibits the United States Environmental Protection Agency (“EPA”) from considering the cost of a technology in comparison to the level of control it achieves and to the environmental “benefit” of that level of control?
2. Whether § 316(b) prohibits EPA from authorizing existing facilities to use restoration measures (for example, fish stocking or habitat restoration) that, taken collectively with the existing characteristics of the cooling water intake structure, ensure that the intake structure minimizes “adverse environmental impact”?
Case Updates
Supreme Court decides cost-benefit analysis and the Clean Water Act
April 01, 2009
Rejecting a challenge by a group of environmental activists and certain states, the Supreme Court held that federal regulators may rely on ‘cost-benefit analysis’ to determine what technologies power plants are required to adopt in order to mitigate the adverse environmental impacts from their cooling intake systems. The Supreme Court held that the EPA may determine what constitutes the “best available technology” required by the Clean Water Act by weighing the costs of a particular environmental technology against the possible environmental benefits from using that technology. As a result of the decision, the EPA need not force electrical power plants to adopt costly technologies that produce only marginal environmental benefits.
U.S. Chamber files amicus brief on cost-benefit analysis and the Clean Water Act
July 21, 2008
PSEG Fossil LLC, et al. v. Riverkeeper, Inc., et al. is a companion to two other cases: Entergy Corporation v. EPA, et al. and Utility Water Group v. Riverkeeper, Inc., et al.
NCLC filed a brief on the merits in these cases.
NCLC urged the Supreme Court to confirm that the Clean Water Act’s provisions dealing with cooling water intake structures do not preclude the use of cost-benefit analysis and restoration measures by the Environmental Protection Agency when it issues regulations pursuant to those provisions. NCLC’s brief made clear that precluding cost-benefit analysis and restoration measures would have significant adverse effects beyond the utility industry.
Cert. petition granted
April 14, 2008
U.S. Chamber urges Supreme Court to review cost-benefit analysis and the Clean Water Act
December 03, 2007
Click here to view NCLC's amicus brief.
Case Documents
- PSEG Fossil LLC, et al. v. Riverkeeper, Inc., et al. (NCLC Brief Supporting Cert.).pdf
- PSEG Fossil LLC, et al. v. Riverkeeper, Inc., et al. (NCLC Brief on Merits).pdf