Entergy Corp. v. Riverkeeper, Inc.Entergy Corp. v. Riverkeeper, Inc.
Lead Opinion
delivered the opinion of the Court.
These cases concern a set of regulations adopted by the Environmental Protection Agency (EPA or agency) under § 316(b) of the Clean Water Act,
I
Petitioners operate — or represent those who operate— large powerplants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ “cooling water intake structures” that extract water from nearby water sources. These structures pose various threats to the environment, chief among them the squashing against intake screens (elegantly called “impingement”) or suction
“Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity ofcooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” § 1326(b) .
Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate the discharge of effluents into the Nation’s waters.
The
In 1995, the EPA entered into a consent decree
The EPA then adopted the so-called “Phase II” rules at issue here.
To address those environmental impacts, the EPA set “national performance standards,” requiring Phase II facilities (with some exceptions) to reduce “impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline”; a subset of facilities must also reduce entrainment of such aquatic organisms by “60 to 90 percent from the calculation baseline.”
In its Phase II rules, however, the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. Id., at 41601. It refused to take that step in part because of the “generally high costs” of converting existing facilities to closed-cycle operation, and because “other technologies approach the performance of this option.” Id., at 41605. Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent, id., at 41601 (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year, id., at 41605, nine times the estimated cost of compliance with the Phase II performance standards, id., at 41666. Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems “would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal,” possibly requiring the construction of “20 additional 400-MW plants ... to replace the generating capacity lost.” Id., at 41605. The EPA thus concluded that “[although not identical, the ranges of impingement and entrainment reduction are similar under both options .... [Benefits of compliance with the Phase II rules] can approach those of closed-cycle recirculating systems at less cost with fewer implementation problems.” Id., at 41606.
The regulations permit the issuance of site-specific variances from the national performance standards if a facility can demonstrate either that the costs of compliance are “significantly greater than” the costs considered by the agency in setting the standards,
Respondents challenged the EPA’s Phase II regulations, and the Second Circuit granted their petition for review and remanded the regulations to the EPA. The Second Circuit identified two ways in which the EPA could permissibly consider costs under
The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Id., at 114. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. Id., at 104-105. (The remand was also based on other grounds which are not at issue here.) The EPA suspended operation of the Phase II rules pending further rulemaking. 72 Fed. Reg. 37107 (2007). We then granted certiorari limited to the following question: “Whether [
II
In setting the Phase II national performance standards and providing for site-specific cost-benefit variances, the EPA relied on its view that
As we have described,
Respondents contend that this latter reading is precluded by the statute’s use of the phrase “for minimizing adverse environmental impact.” Minimizing, they argue, means reducing to the smallest amount possible, and the “best technology available for minimizing adverse environmental impacts” must be the economically feasible technology that achieves the greatest possible reduction in environmental harm. Brief for Respondent Riverkeeper, Inc., et al. 25-26. But “minimize” is a term that admits of degree and is not necessarily used to refer exclusively to the “greatest possible reduction.” For example, elsewhere in the Clean Water Act, Congress declared that the procedures implementing the Act “shall encourage the drastic minimization of paperwork and interagency decision procedures.”
Other provisions in the Clean Water Act also suggest the agency’s interpretation. When Congress wished to mandate the greatest feasible reduction in water pollution, it did so in plain language: The provision governing the discharge of toxic pollutants into the Nation’s waters requires the EPA to set “effluent limitations [which] shall require the elimination of discharges of all pollutants if the Administrator finds ... that such elimination is technologically and economically achievable,” § 1311(b)(2)(A) (emphasis added). See also § 1316(a)(1) (mandating “where practicable, a standard [for new point sources] permitting no discharge of pollutants” (emphasis added)).
Respondents’ alternative (and, alas, also more complex) argument rests upon the structure of the Clean Water Act. The Act provided that during its initial implementation period existing “point sources” — discrete
The first four of these tests are elucidated by statutory factor lists that guide their implementation. To take the standards in (presumed) order of increasing stringency, see Crushed Stone, supra, at 69-70: In applying the BPT test the EPA is instructed to consider, among other factors, “the total cost of application of technology in relation to the effluent reduction benefits to be achieved.” § 1314(b)(1)(B). In applying the BCT test it is instructed to consider “the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived.” § 1314(b)(4)(B) (emphasis added). And in applying the BATEA and BADT tests the EPA is instructed to consider the “cost of achieving such effluent reduction.” §§ 1314(b)(2)(B), 1316(b)(1)(B). There is no such elucidating language applicable to the BTA test at issue here. To facilitate comparison, the texts of these five tests, the clarifying factors applicable to them, and the entities to which they apply are set forth in the Appendix, infra.
The Second Circuit, in rejecting the EPA’s use of cost-benefit analysis, relied in part on the propositions that (1) cost-benefit analysis is precluded under the BATEA and BADT tests; and (2) that, insofar as the permissibility of cost-benefit analysis is concerned, the BTA test (the one at issue here) is to be treated the same as those two. See
Respondents and the dissent argue that the mere fact that
Contrary to the dissent’s suggestion, see post, at 238-240, our decisions in Whitman v. American Trucking Assns., Inc.,
In American Textile, the Court relied in part on a statute’s failure to mention cost-benefit analysis in holding that the relevant agency was not required to engage in cost-benefit analysis in setting certain health and safety standards.
This extended consideration of the text of
In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits. The agency limited variances from the Phase II “national performance standards” to circumstances where the costs are “significantly greater than the benefits” of compliance.
While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years. See Alaska Dept. of Environmental Conservation v. EPA,
Indeed, in its review of the EPA’s Phase I regulations, the Second Circuit seemed to recognize that
In the last analysis, even respondents ultimately recognize that some form of cost-benefit analysis is permissible. They acknowledge that the statute’s language is “plainly not so constricted as to require EPA to require industry petitioners to spend billions to save one more fish or plankton.” Brief for Respondent Riverkeeper, Inc., et al. 29. This concedes the principle — the permissibility of at least some cost-benefit analysis — and we see no statutory basis for limiting its use to situations where the benefits are de minimis rather than significantly disproportionate.
* * *
We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals’ reliance in part on the agency’s use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision,
It is so ordered.
APPENDIX
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Notes
The EPA and its Administrator appeared as respondents in support of petitioners. See Brief for Federal Parties as Respondents Supporting Petitioners. References to “respondents” throughout the opinion refer only to those parties challenging the EPA rules at issue in these cases.
Closed-cycle cooling systems recirculate the water used to cool the facility, and consequently extract less water from the adjacent waterway, proportionately reducing impingement and entrainment. Riverkeeper, Inc. v. EPA, 358 F. Bd 174, 182, n. 5 (CA2 2004); 69 Fed. Reg. 41601, and n. 44 (2004).
The EPA has also adopted Phase III rules for facilities not subject to the
The dissent finds it “puzzling” that we invoke this proposition (that a reasonable agency interpretation prevails) at the “outset,” omitting the supposedly prior inquiry of‘“whether Congress has directly spoken to the precise question at issue.’” Post, at 241, n. 5 (opinion of Stevens, J.) (quoting Chevron,
What is truly “puzzling” is the dissent’s accompanying charge that the Court’s failure to conduct the Chevron step-one inquiry at the outset “reflects [its] reluctance to consider the possibility ... that Congress’ silence may have meant to foreclose cost-benefit analysis.” Post, at 241, n. 5. Our discussion of that issue, infra, at 222-223, speaks for itself
Respondents concede that the term “available” is ambiguous, as it could mean either technologically feasible or economically feasible. But any ambiguity in the term “available” is largely irrelevant. Regardless of the criteria that render a technology “available,” the EPA would still have to determine which available technology is the “best” one. And as discussed above, that determination may well involve consideration of the technology’s relative costs and benefits.
The statute does not contain a hyphen between the words “conventional” and “pollutant.” “Conventional pollutant” is a statutory term, however, see
Dry cooling systems use air drafts to remove heat, and accordingly remove little or no water from surrounding water sources. See 66 Fed. Reg. 65282 (2001).
Justice Breyer would remand for the additional reason of what he regards as the agency’s inadequate explanation of the change in its criterion for variances — from a relationship of costs to benefits that is “ ‘wholly disproportionate’” to one that is “‘significantly greater.’” Post, at 236 (opinion concurring in part and dissenting in part). That question can have no bearing upon whether the EPA can use cost-benefit analysis, which is the only question presented here. It seems to us, in any case, that the EPA’s explanation was ample. It explained that the “wholly out of proportion” standard was inappropriate for the existing facilities subject to the Phase II rules because those facilities lack “the greater flexibility available to new facilities for selecting the location of their intakes and installing technologies at lower costs relative to the costs associated with retrofitting existing facilities,” and because “economically impracticable impacts on energy prices, production costs, and energy production . . . could occur if large numbers of Phase II existing facilities incurred costs that were more than ‘
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the Court that the relevant statutory language authorizes the Environmental Protection Agency (EPA or Agency) to compare costs and benefits. Ante, at 217-223. Nonetheless the drafting history and legislative history of related provisions, Pub. L. 92-500, §§301, 304, 86 Stat. 844, 850, as amended,
I
Section 301 provides that, not later than 1977, effluent limitations for point sources shall require the application of “best practicable control technology,” § 301(b)(1)(A), 86 Stat. 845 (emphasis added); and that, not later than 1983 (later extended to 1989), effluent limitations for categories and classes of point sources shall require application of the “best available technology economically achievable,” § 301(b) (2)(A), ibid, (emphasis added). Section 304(b), in turn, identifies the factors that the Agency shall take into account in determining (1) “best practicable control technology” and (2) “best available technology.” 86 Stat. 851 (emphasis added).
With respect to the first, the statute provides that the factors taken into account by the Agency “shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application... and such other factors as the Administrator deems appropriate.” § 304(b)(1)(B), ibid With respect to the second, the statute says that the Agency “shall take into account... the cost of achieving such effluent reduction” and “such other factors as the Administrator deems appropriate.” § 304(b)(2)(B), ibid.
The drafting history makes clear that the statute reflects a compromise. In the House version of the legislation, the Agency was to consider “the cost and the economic, social, and environmental impact of achieving such effluent reduction” when determining both “best practicable” and “best available” technology. H. R. 11896, 92d Cong., 2d Sess., §§ 304(b)(1)(B), (b)(2)(B) (1972) (as reported from Committee). The House Report explained that the “best available technology” standard was needed — as opposed to mandating the elimination of discharge of pollutants — because “the difference in the cost of 100 percent elimination of pollutants as compared to the cost of removal of 97-99 percent of the pollutants in an effluent can far exceed any reasonable benefit to be achieved. In most cases, the cost of removal of the last few percentage points increases expo[n]entially.” H. R. Rep. No. 92-911, p. 103 (1972).
In the Senate version, the Agency was to consider “the cost of achieving such effluent reduction” when determining both “best practicable” and “best available” technology. S. 2770, 92d Cong., 1st Sess., §§ 304(b)(1)(B), (b)(2)(B) (1971) (as reported from Committee). The Senate Report explains that “the technology must be available at a cost . . . which the Administrator determines to be reasonable.” S. Rep. No. 92-414, p. 52 (1971) (hereinafter S. Rep.). But it said nothing about comparing costs and benefits.
The strongest evidence in the legislative history supporting the respondents’ position — namely, that Congress intended to forbid comparisons of costs and benefits when determining the “best available technology” — can be found in a written discussion of the Act’s provisions distributed to the Senate by Senator Edmund Muskie, the Act’s principal sponsor, when he submitted the Conference Report for the Senate’s consideration. 118 Cong. Rec. 33693 (1972). The relevant part of that discussion points out that, as to “best practicable technology,” the statute requires application of a “balancing test between total cost and effluent reduction benefits.” Id., at 33696; see § 304(b)(1)(B). But as to “best available technology,” it states: “While cost should be a factor in the Administrator’s judgment, no balancing test will be required.” Ibid.; see § 304(b)(2)(B). And Senator Muskie’s discussion later speaks of the Agency “evaluating] . . . what needs to be done” to eliminate pollutant discharge and “what is achievable,” both “without regard to cost.” Ibid.
As this language suggests, the Act’s sponsors had reasons for minimizing the EPA’s investigation of, and reliance upon, cost-benefit comparisons. The preparation of formal cost-benefit analyses can take too much time, thereby delaying regulation. And the sponsors feared that such analyses would emphasize easily quantifiable factors over more qualitative factors (particularly environmental factors, for example, the value of preserving nonmarketable species of fish). See S. Rep., at 47. Above all, they hoped that minimizing the use of cost-benefit comparisons would force the development of cheaper control technologies; and doing so, whatever the initial inefficiencies, would eventually mean cheaper, more effective cleanup. See id., at 50-51.
Nonetheless, neither the sponsors’ language nor the underlying rationale requires the Act to be read in a way that would forbid cost-benefit comparisons. Any such total prohibition would be difficult to enforce, for every real choice requires a decisionmaker to weigh advantages against disadvantages, and disadvantages can be seen in terms of (often quantifiable) costs. Moreover, an absolute prohibition would bring about irrational results. As the respondents themselves say, it would make no sense to require plants to “spend billions to save one more fish or plankton.” Brief for Respondent Riverkeeper, Ine., et al. 29. That is so even if the industry might somehow afford those billions. And it is particularly so in an age of limited resources available to deal with grave environmental problems, where too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems.
Thus Senator Muskie used nuanced language, which one can read as leaving to the Agency a degree of authority to make cost-benefit comparisons in a manner that is sensitive both to the need for such comparisons and to the concerns that the law’s
Senator Muskie’s statement then considers the “different test” that the statute requires the Administrator to apply when determining the “‘best available’” technology. Ibid. (emphasis added). Under that test, the Administrator “may consider a broader range of technological alternatives.” Ibid. And in determining what is “‘best available’ for a category or class, the Administrator is expected to apply the same principles involved in making the determination of ‘best practicable’ . . . except as to cost-benefit analysis.” Ibid, (emphasis added). That is, “[w]hile cost should be a factor... no balancing test will be required.” Ibid, (emphasis added). Rather, “[t]he Administrator will be bound by a test of reasonableness” Ibid, (emphasis added). The statement adds that the “ ‘best available’ ” standard “is intended to reflect the need to press toward increasingly higher levels of control.” Ibid, (emphasis added). And “the reasonableness of what is ‘economically achievable’ should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology — without regard to cost.” Ibid, (emphasis added).
I believe, as I said, that this language is deliberately nuanced. The statement says that where the statute uses the term “best practicable,” the statute requires comparisons of costs and benefits; but where the statute uses the term “best available,” such comparisons are not “required” Ibid, (emphasis added). Senator Muskie does not say that all efforts to compare costs and benefits are forbidden.
Moreover, the statement points out that where the statute uses the term “best available,” the Administrator “will be bound by a test of reasonableness.” Ibid, (emphasis added). It adds that the Administrator should apply this test in a way that reflects its ideal objective, moving as closely as is technologically possible to the elimination of pollution. It thereby says the Administrator should consider, i. e., take into account, how much pollution would still remain if the best available technology were to be applied everywhere— “without regard to cost.” Ibid. It does not say that the Administrator must set the standard based solely on the result of that determination. (It would be difficult to reconcile the alternative, more absolute reading of this language with the Senator’s earlier “test of reasonableness.”)
I say that one may, not that one must, read Senator Muskie’s statement this way. But to read it differently would put the Agency in conflict with the test of reasonableness by threatening to impose massive costs far in excess of any benefit. For 30 years the EPA has read the statute and its history in this way. The EPA has thought that it would not be “reasonable to
The EPA’s reading of the statute would seem to permit it to describe environmental benefits in non-monetized terms and to evaluate both costs and benefits in accordance with its expert judgment and scientific knowledge. The Agency can thereby avoid lengthy formal cost-benefit proceedings and futile attempts at comprehensive monetization, see 69 Fed. Reg. 41661-41662 (2004); take account of Congress’ technology-forcing objectives; and still prevent results that are absurd or unreasonable in light of extreme disparities between costs and benefits. This approach, in my view, rests upon a “reasonable interpretation” of the statute— legislative history included. Hence it is lawful. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
II
The eases before us, however, present an additional problem. We here consider a rule that permits variances from national standards if a facility demonstrates that its costs would be “significantly greater than the benefits of complying.”
I am not convinced the EPA has successfully explained the basis for the change. It has referred to the fact that existing facilities have less flexibility than new facilities with respect to installing new technologies, and it has pointed to special, energy-related impacts of regulation. 68 Fed. Reg. 13541 (2003) (proposed rule). But it has not explained why the traditional “wholly disproportionate” standard cannot do the job now, when the EPA has used that standard (for existing facilities and otherwise) with apparent success in the past. See, e. g., Central Hudson, supra.
Section 316(b) of the Clean Water Act (CWA),
Like the Court of Appeals, I am convinced that the EPA has misinterpreted the plain text of § 316(b). Unless costs are so high that the best technology is not “available,” Congress has decided that they are outweighed by the benefits of minimizing adverse environmental impact. Section 316(b) neither expressly nor implicitly authorizes the EPA to use cost-benefit analysis when setting regulatory standards; fairly read, it prohibits such use.
I
As typically performed by the EPA, cost-benefit analysis requires the Agency to first monetize the costs and benefits of a regulation, balance the results, and then choose the regulation with the greatest net benefits. The process is particularly controversial in the environmental context in which a regulation’s financial costs are often more obvious and easier to quantify than its environmental benefits. And cost-benefit analysis often, if not always, yields a result that does not maximize environmental protection.
For instance, although the EPA estimated that water intake structures kill 3.4 billion fish and shellfish each year,
Because benefits can be more accurately monetized in some industries than in others, Congress typically decides whether it is appropriate for an agency to use cost-benefit analysis in crafting regulations. Indeed, this Court has recognized that “[w]hen Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.” American Textile Mfrs. Institute, Inc. v. Donovan,
When interpreting statutory silence in the past, we have sought guidance from a statute’s other provisions. Evidence that Congress confronted an issue in some parts of a statute, while leaving it unaddressed in others, can demonstrate that Congress meant its silence to be decisive. We concluded as much in American Trucking. In that case, the Court reviewed a claim that § 109 of the Clean Air Act (CAA),
Further motivating the Court in American Trucking was the fact that incorporating implementation costs into the Agency’s calculus risked countermanding Congress’ decision to protect public health. The cost of implementation, we said, “is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in [the text] had Congress meant it to be considered.” Id., at 469.
American Trucking’s approach should have guided the Court’s reading of
II
In 1972, Congress amended the CWA to strike a careful balance between the country’s energy demands and its desire to protect the environment. The Act required industry to adopt increasingly advanced technology capable of mitigating its detrimental environmental impact. Not all point sources were subject to strict rules at once. Existing plants were granted time to retrofit with the best technology while new plants were required to incorporate such technology as a matter of design. Although Congress realized that technology standards would necessarily put some firms out of business, see EPA v. National Crushed Stone Assn.,
Section 316(b) was an integral part of the statutory scheme. The provision instructs that “[a]ny standard established pursuant to
Based largely on the observation that § 316(b)’s text offers little guidance and therefore delegates some amount of gap-filling authority to the EPA, the Court concludes that the Agency has discretion to rely on cost-benefit analysis. See ante, at 222-223. The Court assumes that, by not specifying how the EPA is to determine BTA, Congress intended to give considerable discretion to the EPA to decide how to proceed. Silence, in the majority’s view, represents ambiguity and an invitation for the Agency to decide for itself which factors should govern its regulatory approach.
The appropriate analysis requires full consideration of the CWA’s structure and legislative history to determine whether Congress contemplated cost-benefit analysis and, if so, under what circumstances it directed the EPA to utilize it. This approach reveals that Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others, and that Congress intended to control, not delegate, when cost-benefit analysis should be used. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
The first tier of technology standards applied to existing plants — facilities for which retrofitting would be particularly costly. Congress required these plants to adopt “effluent limitations ... which shall require the application of the best practicable control technology currently available.”
The second tier of technology standards required existing powerplants to adopt the “best available technology economically achievable” to advance “the national goal of eliminating the discharge of all pollutants.”
The BAT standard’s legislative history strongly supports the view that Congress purposefully withheld cost-benefit authority for this tier of regulation. See ibid., n. 10. The House of Representatives and the Senate split over the role cost-benefit analysis would pláy in the BAT provision. The House favored the tool, see H. R. Rep. No. 92-911, p. 107 (1972), 1 Leg. Hist. 794, while the Senate rejected it, see 2 id., at 1183; id., at 1132. The Senate view ultimately prevailed in the final legislation, resulting in a BAT standard that was “not subject to any test of cost in relation to effluent reduction benefits or any form of cost/benefit analysis.” 3 Legislative History of the Clean Water Act of 1977: A Continuation of the Legislative History of the Federal Water Pollution Control Act (Committee Print compiled for the
Senate Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 427 (1978).
The third and strictest regulatory tier was reserved for new point sources — facilities that could incorporate technology improvements into their initial design. These new facilities were required to adopt “the best available demonstrated control technology,” or “BADT,” which Congress described as “a standard . . . which reflects] the greatest degree of effluent reduction.” § 1316(a)(1). In administering BADT, Congress directed the EPA to consider “the cost of achieving such effluent reduction.” § 1316(b)(1)(B). But because BADT was meant to be the most stringent standard of all, Congress made no mention of cost-benefit analysis. Again, the silence was intentional. The House’s version of BADT originally contained an exemption for point sources for which “the economic, social, and environmental costs bear no reasonable relationship to the economic, social, and environmental benefit to be obtained.” 1 Leg. Hist. 798. That this exemption did not appear in the final legislation demonstrates that Congress considered, and rejected, reliance on cost-benefit analysis for BADT.
It is in this light that the BTA standard regulating water intake structures must be viewed. The use of cost-benefit analysis was a critical component of the CWA’s structure and a key concern in the legislative process. We should therefore conclude that Congress intended to forbid cost-benefit analysis in one provision of the Act in which it was silent on the matter when it expressly authorized its use in another.
Accordingly, I would hold that the EPA is without authority to perform cost-benefit analysis in setting BTA standards. To the extent the EPA relied on cost-benefit analysis in establishing its BTA regulations,
Ill
Because the Court unsettles the scheme Congress established, I respectfully dissent.
To produce energy, industrial powerplants withdraw billions of gallons of water daily from our Nation’s waterways. Thermoelectric powerplants alone demand 39 percent of all freshwater withdrawn nationwide. See Dept, of Energy, Addressing the Critical Link Between Fossil Energy and Water 2 (Oct. 2005), http://www.netl.doe.gov/technologies/coalpower/ewr/ pubs/NETL_Water_Paper_Final_Oct.2005.pdf (all Internet materials as visited Mar. 18,2009, and available in Clerk of Court’s case file). The fish and shellfish are killed by “impingement” or “entrainment.” Impingement occurs when aquatic organisms are trapped against the screens and grills of water intake structures. Entrainment occurs when these organisms are drawn into the intake structures. See Riverkeeper, Inc. v. EPA,
EPA, Economic and Benefits Analysis for the Proposed Section 316(b) Phase II Existing Facilities Rule, p. Dl-4 (EPA-821-R-02-001, Feb. 2002), http://www.epa.gov/waterscience/316b/phase2/econbenefits.
EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, p. Dl-5 (EPA-821-R-04-005, Feb. 2004), http://www.epa.gov/waterscience/316b/phase2/econbenefits/final.htm.
The two cross-referenced provisions,
The majority announces at the outset that the EPA’s reading of the BTA standard “governs if it is a reasonable interpretation of the statute— not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts.” Ante, at 218. This observation is puzzling in light of the commonly understood practice that, as a first step, we ask “whether Congress has directly spoken to the precise question at issue.” Chevron,
Congress later extended the deadline to March 31,1989.
Senator Muskie, the Senate sponsor of the legislation, described the cost-benefit analysis permitted under BPT as decidedly narrow, asserting that “[t]he balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources.” 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 170 (1973) (hereinafter Leg. Hist.)
Although the majority calls this “BATEA,” the parties refer to the provision as “BAT,” and for simplicity, so will I.
The Court argues that, if silence in § 316(b) signals the prohibition of cost-benefit analysis, it must also foreclose the consideration of all other potentially relevant discretionary factors in setting BTA standards. Ante, at 222. This all-or-nothing reasoning rests on the deeply flawed assumption that Congress treated cost-benefit analysis as just one among many factors upon which the EPA could potentially rely to establish BTA. Yet, as explained above, the structure and legislative history of the CWA demonstrate that Congress viewed cost-benefit analysis with special skepticism and controlled its use accordingly. The Court’s assumption of equivalence is thus plainly incorrect. Properly read, Congress’ silence in § 316(b) forbids reliance on the cost-benefit tool but does not foreclose reliance on all other considerations, such as a determination whether a technology is so costly that it is not “available” for industry to adopt.
In 1977, Congress established an additional technology-based standard, commonly referred to as “best conventional pollutant control technology,” or “BCT,” to govern conventional pollutants previously covered by the BAT standard. See
The Court attempts to cabin its holding by suggesting that a “rigorous form of cost-benefit analysis,” such as the form “prescribed under the statute’s former BPT standard,” may not be permitted for setting BTA regulations. Ante, at 223. Thus the Court has effectively instructed the Agency that it can perform a cost-benefit analysis so long as it does not resemble the kind of cost-benefit analysis Congress elsewhere authorized in the CWA. The majority’s suggested limit on the Agency’s discretion can only be read as a concession that cost-benefit analysis, as typically performed, may be inconsistent with the BTA mandate.
The “national performance standards” the EPA adopted were shaped by economic efficiency concerns at the expense of finding the technology that best minimizes adverse environmental impact. In its final rule-making, the Agency declined to require industrial plants to adopt closed-cycle cooling technology, which by recirculating cooling-water requires less water to be withdrawn and thus fewer aquatic organisms to be killed. Riverkeeper, Inc. v. EPA,
Thus, the Agency’s past reliance on a “wholly disproportionate” standard, a mild variant of cost-benefit analysis, is irrelevant. See ante, at 224-225 (majority opinion). Because “Congress has directly spoken to the precise question at issue,” Chevron,