U.S. Supreme Court Will Hear Riverkeeper Case Concerning Power Plants, Cooling Water, and Fish Kills. Millstone and Other Sound Plants Are Involved.

This blog is going to be a Broadwater-free zone for the next few days, I hope. With that I mind, the U.S. Supreme Court has agreed to hear an important case in the long-term battle to limit the number of fish that are killed in the cooling water intakes of power plants, including the Millstone plant in Waterford and many others.

Soundkeeper Terry Backer tipped me off (he's a plaintiff in Riverkeeper v. EPA, one of the suits that was consolidated by the Supreme Court) and sent me a link to SCOTUSBlog, which explains the case:

The Court also announced it will rule on whether the Environmental Protection Agency may compare costs with benefits when it orders major electricity-generating plants to install new technology when they draw water out of rivers and streams to cool their turbines....

In the electric industry case, the Court actually consolidated three petitions for review, and limited its review to a question as it has been composed by the U.S. Solicitor General’s office in response to the petitions. Here is the question: “Whether 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.” One hour of oral argument will be scheduled in the combined cases of Entergy Corp. v. EPA (07-588), PSEG Fossil v. Riverkeeper (07-589), and Utility Water Act Group v. Riverkeeper (07-597).

The Court agreed to rule in those cases even though the Solicitor General had urged it not to do so. While arguing that the Second Circuit Court had been wrong in concluding that EPA could not make a cost-benefit analysis under the specific provision in the Clean Water Act, the SG also said that the EPA was conducting a new review that may take some months, and that review might change the shape of the legal dispute. The SG conceded, though, that electric-generating plants could well incur significant new costs in the interim, and might even have to shut down their facilities to retrofit their water-intake structures.

Although the electric companies had raised other issues beyond the cost-benefit question –whether EPA could offset environmental harms by restocking the fish supply or improving aquatic habitat in the streams, and whether EPA could impose new technology requirements on existing plants as well as new ones — the Court did not agree to hear those.

The cases granted on Monday will be heard in the new Term starting Oct. 6.

There's an earlier post of mine about the Appellate Division's decision here. If you search "Millstone" in the search blog box above, you'll find a bunch of other posts as well.