Tuesday, April 14, 2009


I'm a little slow getting to it, but I just read the Supreme Court's very interesting opinion in Entergy Corp. v. Riverkeeper, Inc. The case concerned the requirements imposed by EPA regarding power plants that have water intake systems. These systems, which may use millions of gallons of water per day for cooling purposes, have adverse environmental impact on fish and other acquatic life that get crushed up against intake screens or sucked into the intake system. The EPA's regulations require measures to mitigate this adverse impact.

And here's the key: by statute, the regulations must require power plants to use "the best available technology for minimizing adverse environmental impact." Now, what does that mean? Does it mean that the EPA must require plants to use the available technology that most reduces adverse environmental impact -- regardless of how much it costs? Does the EPA have discretion not to require the use of technology that would bankrupt the power industry? Does the EPA have even more discretion to balance costs against benefits generally and make what it regards as a reasonable decision?

The Court held that Congress's use of the term "best" is ambiguous, and so, under the principle of Chevron deference, it's up to the agency to resolve the ambiguity in any reasonable way.

I guess this is a possible reading of the term "best." I'm inclined to think the term is more naturally read to mean the technology that best serves the purpose in question, without regard to cost. Still, when a magazine recommends the "best" stereo for you to buy, it could mean the very best stereo on the market, without regard to cost, but it might also mean the best one for actual people to buy, which would include some consideration of cost.

The interesting thing is that I had always understood the cases to suggest that cost is a virtually ubiquitous consideration in administrative decisionmaking and that, unless it's pretty clearly forbidden, agencies are permitted to consider it, even when it's not expressly mentioned in a statute. Then in 2001 the Supreme Court, in an opinion by Justice Scalia, said that where Congress requires the EPA to set a certain pollution limit at the level that is "requisite to protect the public health," that language clearly forbids any consideration of cost (Whitman v. American Trucking). Now, the Court, in another opinion by Justice Scalia, has said that the language "best available technology for minimizing adverse environmental impact" permits consideration of cost. I guess I'm missing the subtle distinction in the language involved.

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