*1 v. et al. RIVERKEEPER, INC., ENTERGY CORP. Argued April December 2009* No. 07-588. 2008 Decided Inc., *Together 07-589, PSEG Riverkeeper, with No. Fossil LLC et al. v. Inc., al., al., 07-597, Act Utility Group Riverkeeper, et and No. Water et on court. also certiorari to the same *3 Mahoney E.
Maureen argued cause for petitioners. her With on the for briefs et petitioners Entergy al. Corp. Ballenger, J. Scott Bernstein, Cassandra S. N. Elise were Abigail Martin, Zoli, Hemani, Kevin P. D. Barlow, Chuck Kristy Valeri, A. John G. Jr. N. Bulleit filed briefs for and Water Act petitioner Utility Group.
Deputy Solicitor General for cause argued Joseffer the federal under this Court’s Rule parties respondents 12.6 in of With him on support the briefs were petitioners. Attorney Garre, former Solicitor General Assistant General Tenpas, Deputy Cynthia General Kneedler, Solicitor J. Mor- ris, and Jessica O'Donnell.
Richard J. Lazarus argued cause for respondents. for With him on the brief respondents Inc., Riverkeeper, Super, Lloyd, Edward and P. Kent Reed W. Cor- al. were et rell. Island et al. respondents A State of Rhode brief Lynch, Patrick C. of Rhode General by Attorney was filed Jedele, Trida O’Hare Attorney Assistant Island, Special and Blumenthal, Richard of General, Attorney General Connect Kimberly Levine, Assist Massicotte and Matthew and icut, Coakley, General, Martha Attorney ant General Attorneys Goldberg, Andrew Massachusetts, Assistant of Attorney Cuomo, M. Andrew York, of New Attorney General General, Andy Bing, Underwood, D. D. Barbara General, Solicitor Hartman, Denise A. General, Assistant So Solicitor Deputy Leary, F. General, and Maureen Attorney licitor Assistant Joseph III, R. Biden General, Delaware, General Attorney Maloney, Anne and Kevin Mil- Deputy Attorney General, gram, Barney and Ellen of New Attorney General Jersey, Balint, † Attorney General. Deputy urging
† reversal were filed for State of Briefs amici curiae Ne- Bruning, Attorney Nebraska, by et al. Jon General of David braska Cookson, Attorney General, Deputy Attorneys Chief Gen- D. respective Troy King, eral and other officials for their States as follows: McDaniel, Attorney Alabama, Attorney General of Dustin General of Ar- McCollum, kansas, Suthers, Colorado, Attorney John General Bill W. Carter, Attorney Florida, Attorney Indiana, General Steve General of Six, Stephen Attorney Kansas, Maag, N. Deputy General of and Jared S. General, Conway, Attorney Kentucky, Jack D. Solicitor General of James Cox, Caldwell, Attorney Louisiana, Attorney General of A. Gen- Michael Nixon, (Jay) Missouri, Michigan, Attorney Jeremiah W. eral General of Mexico, King, Wayne Stenehjem, Gary Attorney K. General of New Attor- *4 Dakota, McMaster, ney Henry Attorney of of General North General Carolina, Jr., Tennessee, Cooper, Attorney E. of South Robert General Abbott, Texas, McDonnell, Attorney of F. Greg General and Robert Attor- Thro, General; for ney Virginia, of and William E. State Solicitor General Chemistry by Frye, et A. the al. S. Leslie American Council Russell Hulse, Wasserstrom, Conrad, Sarwal, S. Robin S. Amar D. Jan Richard Amundson, Quentin Riegel; for Institute S. and the American Petroleum Albers, See; Ballard, by Harry Ng, P. David T. and Michael for Daniel by Balance Kevin California Council for Environmental and Economic the Fong; by for the National of Builders Messrs. M. Association Home Ballard, Ward; Desiderio, the Duane J. and Thomas J. for Albers and DuMont, by Waxman, C. Brian Energy Institute Seth P. Edward Nuclear the of the opinion delivered Court. Justice Scalia These cases concern a of set regulations adopted by (EPA Protection Environmental under agency) 1326(b). of Clean Act, Water 33 U.S.C. (2004). 69 Fed. Reg. Respondents —environmental those and various challenged regulations, groups States1 — Inc. Circuit set them aside. Riverkeeper, and Second EPA, our 475 F. 3d 99-100 The issue for decision whether, held, as Second Circuit is not per- mitted to use cost-benefit the content analysis determining 1326(b). of regulations promulgated under I Petitioners who operate those represent operate— —or large the course of those powerplants. power, generating Boynton, Ginsberg; M. Ellen C. Legal and and for the Pacific Foundation by M. Hopper Geoffrey Reed Gieseler. Steven and
Briefs of amici curiae urging affirmance were filed for the State of et Madigan, Lisa by Attorney Illinois, Illinois al. Michael A General of Scodro, Notz, General, Elinor General, Jane Deputy Solicitor and Solicitor Sánchez-Ramos, Secretary Roberto J. by Rico, by of of Justice Puerto Mather, Susan Shinkman and Richard P. by Attorneys and General Douglas States as follows: Tom Miller of F. respective Iowa, for their Gansler of Nancy Mike McGrath H. Rogers Maryland, Montana, Drew Ohio, W.A. Edmondson Oklahoma; and for Commercial Fisher- Tai; America, J. al., men Stephanie Elizabeth Hubertz and by et for by Christopher Wright Timothy J. Environment et al. J. America Simeone; Goldstein; A. for Jared by Environmental Law Professors for Mears; the National David K. et al. by Wildlife Federation for OMB Watch Sinden; Amy by et al. Deborah A Sivas by and for Voices of Wetlands and Leah J. Russin. amici curiae Briefs of were Regulatory filed for the AEI Center Litan; et al. Robert E. by
and Market Air Studies for the Clean Task Force Weeks; Brewster Ann Frank Ackerman et al. David by et al. and for Douglas Kysar. M. Driesen A. appeared respondents support
1The EPA its Administrator as petitioners. Respondents Supporting for Federal Parties See Brief “respondents” throughout opinion Petitioners. References refer challenging only parties the EPA to those rules at issue in these cases.
213 also plants generate amounts of heat. To large cool their facilities, petitioners employ water “cooling intake struc- tures” extract water from nearby water sources. These structures pose various threats to the environment, (ele- chief them the intake among squashing against screens called “impingement”) suction into the gantly cooling (“entrainment”) of system aquatic organisms live in the water sources. affected See 69 Fed. 41586. Accord- Reg. the facilities are ingly, subject under the regulation Clean § S.U. C. 1251 et seq., which mandates: Act, Water standard established
“Any pursuant section 1311 of this title or section 1316 of this title and applicable to a source shall that the point require location, con- design, struction, and capacity cooling water intake struc- tures reflect the best technology available for minimiz- 1326(b). adverse environmental impact.” 1311 and 1316, Sections in turn, a employ variety “best standards technology” to regulate the discharge effluents into the Nation’s waters.
The regulations issue here were promulgated by the EPA after three nearly decades in which the deter- mination of the “best available for minimizing water intake [cooling adverse structures’] environmental im- was made pact” authorities on a permit-issuing case-by- basis, case without benefit of a governing regulation.
EPA’s initial attempt such came to regulation nought when the Fourth Circuit determined that had agency failed to adhere of the Ad- procedural requirements Power ministrative Procedure Act. Appalachian Co. Train, 566 F. 2d The EPA withdrew (1979), Fed. instead regulation, Reg. published 1326(b)’s “draft for use in guidance” implementing require- §1342. ments via decisions under site-specific See permit EPA, Enforcement Div., Office Water Permits {Draft} Evaluating Guidance for Adverse Impact Cooling *6 Aquatic Sec- Environment: on the Intake Structures Water 1977), http:// 316(b) (May online at 1, 92-500 P. L. tion (all www.epa.gov/waterscience/316b/files/1977AEIguid.pdf in 2009, and available 30, as visited Mar. materials Internet (describing file); Reg. 41584 69 Fed. case Clerk of Court’s guidance). case-by-case permits the draft system under which, as decree into a consent EPA entered 1995, the multiphase for the timetable set a subsequently amended, 1326(b). § River regulations See promulgate under EPA to (AGS), 2001 WL Whitman, 93 0314 keeper, No. Civ. v. Inc. 2001). (SDNY, phase the In the first 27, *1 Nov. large regulations governing new, cool certain adopted (2001) Reg. 66 65256 Fed. intake structures. water (2008). 125.81(a) 125.80(a), §§ (Phase rules); see 40 CFR I require water-intake flow with new facilities rules Those day among gallons per other to, greater 10 million than with things, commensurate their inflow “to a level restrict closed-cycle recirculating by can be attained that which 125.84(b)(1). cooling system.”2 with New facilities water gallons million 2 million and 10 flow between water-intake by, among things, may alternatively comply day per other velocity reducing to cer of water removal the volume and 125.84(c). may alternatively And all facilities levels. tain things, among by demonstrating, comply other “that envi technologies employed level of adverse will reduce the comparable to what would impact... to a level” ronmental closed-cycle cooling system. by using a be achieved 125.84(d). large part upheld regulations were These Riverkeeper, EPA, 358 Inc. v. F. 3d the Second Circuit (2004). systems the water used cool the fa recirculate Closed-cycle cooling adjacent waterway, water from the extract less cility, consequently Riverkeeper, impingement and entrainment. reducing proportionately (CA2 EPA, 174, 182, 2004); Reg. n. 5 69 Fed. Inc. 358 F. Bd n. 44 then II”
The EPA so-called “Phase rules at adopted here.3 Fed. 41576. Reg. They existing issue apply sources, are is point whose primary activity facilities (or transmission) for and transmission sale generation whose flow more mil- water-intake is than 50 electricity, of water least 25 per day, lion which percent gallons Ibid. Over 500 facilities, cooling for ac- purposes. used for Nation’s percent counting approximately fall within Phase II’s generating capacity, electric-power EPA, Economic and ambit. Benefits Analysis See II Phase Rule, the Final Section Facilities Existing *7 (Table 2004), A3-4, Feb. online at A3-13 p. http://www. epa.gov/waterscience/316b/phase2/econbenefits/final/a3. on Those facilities remove than more 214 bil-
pdf. average lion of water per day, and en- gallons causing impingement trainment of over billion 3.4 69 aquatic organisms per year. Fed. 41586. Reg.
To address those environmental impacts, EPA set “na- standards,” tional Phase performance II facilities requiring (with to some reduce exceptions) “impingement mortality all life of fish and shellfish 80 to 95 stages by from the percent baseline”; a of calculation subset facilities must also reduce entrainment of such to 90 aquatic organisms by “60 percent the calculation 125.94(b)(1), (2); from baseline.” CFR baseline”). § 125.93 “calculation (defining see Those targets are on the environmental based achievable improvements of a mix of remedial through deployment technologies, EPA 41599, which the determined were “commer- Reg. Fed. id., at cially economically practicable,” available and 41602. rules, II the EPA however, its Phase declined expressly closed-cycle cooling to mandate of adoption systems equiv- adopted subject also III rules for facilities not has Phase Reg. regulations. the Phase I and Phase II 71 Fed. to A Circuit, currently before challenge regulations to those the Fifth where stayed pending disposition been proceedings have these cases. See EPA, ConocoPhillips Co. No. 06-60662. impingement entrainment, as it alent reductions had subject facilities to I for new the Phase rules. Id., done step part It refused to take that 41601. because of high existing “generally converting costs” of facilities operation, closed-cycle technologies “other because performance option.” approach Id., this at 41605. closed-cycle cooling systems could Thus, while reduce im- mortality up percent, pingement and entrainment to 98 (compared targets to the id., at 41601 Phase II of 80 to 95 reduction), impingement percent rendering all the cost of closed-cycle-compliant approxi- II facilities Phase would be mately per year, id., billion nine times the esti- $3.5 compliance performance mated cost with the II Phase standards, id., at Moreover, 41666. II com- Phase facilities pelled closed-cycle systems cooling convert “would produce percent percent electricity 2.4 to 4.0 less while even burning possibly requiring coal,” same amount of plants replace construction “20 additional 400-MW ... generating capacity Id., lost.” at 41605. The EPA thus “[although ranges concluded that identical, of im- pingement and entrainment reduction are similar under both options compliance [Benefits .... with II Phase approach rules] closed-cycle recirculating sys- can those of *8 implementation problems.” tems at less cost with fewer Id., at 41606. regulations permit site-specific
The the issuance of vari- performance facility ances from the national if a standards compliance “sig- can demonstrate either that the costs of are nificantly greater by agency than” the costs considered the § setting 125.94(a)(5)(i), in standards, 40 CFR or that the compliance significantly greater costs of “would be than the complying applicable performance benefits of with the stand- 125.94(a)(5)(h). § ards,” aWhere variance warranted, is permit-issuing authority impose must remedial measures yield practicable applicable that results “as close as to the (ii). performance 125.94(a)(5)(i), standards.” Respondents challenged EPA’s Phase II regulations, and the Second their Circuit for granted review and petition remanded the to the regulations EPA. Second Circuit two in which the identified EPA could ways con- permissibly 1326(b): (1) sider costs 33 U. S. in under C. determining whether the costs of remediation “can be ‘reasonably borne’ (2) industry,” and which remedial tech- determining are effective, the most cost nologies is, the technologies that reach a at the specified level benefit lowest cost. id., 3d,
F. at 99-100. See at 98, concluded, also and n. It 10. however, that cost-benefit which analysis, “compares costs and benefits of ends, various chooses end with the best net benefits,” id., at impermissible under 1326(b), id., at 100.
The Court of
held the
Appeals
cost-benefit
site-specific
Id.,
variance
to be unlawful.
provision
at 114.
it
Finding
unclear whether the EPA had relied on cost-benefit analysis
in setting the national
standards, or
performance
had only
used cost-effectiveness
it remanded
analysis,
to the agency
Id.,
(The
for
clarification
at
point.
104-105.
remand
was
here.)
also based on other
which are
grounds
not at issue
The EPA
of the
suspended
Phase II
operation
rules pend-
further
(2007).
rulemaking.
Fed.
Reg.
We
then granted certiorari
limited to the following question:
1326(b)]
“Whether
. .
[§
. authorizes
[EPA]
compare
costs with
benefits
‘the best
determining
avail-
technology
able for
adverse environmental
minimizing
impact’
cooling
water intake structures.”
41603. interpreta- necessarily only possible the statute —not reasonable most even the deemed tion, interpretation nor Resources U. S. A. Inc. v. Natural Chevron the courts. by (1984).4 Council, Inc., 837, S.U. 843-844 Defense set described, As we have instructs intake that reflect water structures cooling standards available for adverse envi- “the best technology minimizing The Second Circuit that language ronmental took impact.” that reduction achieves the to mean the technology greatest at that can reason- environmental a cost impacts adverse That 3d, at 99-100. by industry. be borne F. ably The of the statute. interpretation is a certainly plausible “best” which is “most Web- technology advantageous,” —that (2d International ed. Dictionary 1953) may ster’s New — a one that the most of here good, well be the some produces But “best tech- in adverse environmental impact. reduction also describe the that most nology” may effi- In common one could some parlance ciently produces good. to refer to “best phrase technology” use certainly it cost, at even if which a the lowest per-unit produces good than other available lesser of that good a produces quantity technologies. this latter is reading precluded contend that
Respondents “for adverse the statute’s use of the phrase minimizing (that proposition invoke this “puzzling” finds it that we dissent “outset,” omitting at the agency interpretation prevails) reasonable directly spoken to the prior Congress has supposedly inquiry of‘“whether J.) Stevens, Post, n. (opinion at precise question issue.’” at Chevron, 842). surely S., Congress directly if has But (quoting 467 U. at contradicting any interpretation what Con spoken agency to an issue then gress has be said would unreasonable. charge accompanying truly “puzzling” is the dissent’s What step-one inquiry at the outset “re- conduct the Chevron Court’s failure to Congress’ ... possibility silence reluctance to consider flects [its] Post, analysis.” n. 5. may have meant foreclose 222-223, speaks for infra, issue, itself of that Our discussion *10 they impact.” argue, Minimizing, environmental means re possible, ducing to amount and the the smallest “best tech minimizing nology available for adverse environmental im economically technology pacts” must be the feasible possible greatest reduction in achieves the environmental Respondent Riverkeeper, Inc., harm. Brief et 25- al. degree is a term “minimize” that admits of 26. But and is necessarily exclusively “greatest pos used refer to the not example, For elsewhere in sible reduction.” the Clean Congress procedures imple Act, declared that Water menting encourage Act “shall the drastic minimization paperwork interagency procedures.” decision 1251(f). § respondents’ If U. S. C. definition of the term correct, “minimize” is the statute’s use of the modifier “dras superfluous. is tic” provisions suggest in the
Other Clean Water Act also agency’s interpretation. Congress When wished to mandate greatest pollution, feasible reduction in water it did so in provision plain language: governing discharge The pollutants requires toxic into the Nation’s waters the EPA [which] require to set “effluent limitations shall the elimina- discharges pollutants of all tion of if the Administrator technologically finds that such elimination ... and economi- 1311(b)(2)(A) added). cally (emphasis achievable,” See also 1316(a)(1) (mandating practicable, [for “where a standard sources] point permitting discharge pollutants” new no added)). 1326(b)’s (emphasis Section use of less ambi- goal “minimizing impact” adverse tious environmental suggests, agency think, we that the retains some discretion the extent of that is to determine reduction warranted under plausibly That the circumstances. determination could in- a consideration of the volve benefits derived from reductions (defin- achieving the costs of them. Cf. 125.83 40 CFR purposes regulations “minimize” for of the Phase I “reducing] degree to the amount, extent, smallest reason- ably possible”). phrase us, therefore, It seems to that the available,” specifica even with added
“best does impact,” “for adverse environmental minimizing tion .5 preclude analysis unambiguously also more ar (and, alas, complex) alternative Respondents’ Water structure of the Clean Act. rests upon gument Act its initial during implementation pe provided from sources” —discrete “point conveyances riod existing are or 33 U. may which be S. C. discharged, pollutants *11 1362(14) § . . subject limitations . which “effluent —were control the best shall of application practicable require 1311(b)(1)(A) § currently technology (emphasis available.” added). (We test.) call this shall the “BPT” Following the Act transition mandated period, initially adoption, (later 31, of July 1989), extended to March stricter the best avail effluent limitations of requiring “application able achievable for such technology economically category class, which will result in further reasonable to progress ward the of goal national of all eliminating discharge pol 1311(b)(2)(A) see EPA v. Na § added); lutants.” (emphasis (We Assn., tional Crushed Stone 449 U. S. 69-70 test.) shall call this the “BATEA” amendment Subsequent this limited of standard toxic and noneonven application tional and for the remainder established a pollutants, (pre laxer) test “best control sumably conventional-pollutant (We “BCT.”) 1311(b)(2)(E).6 § call shall this technology.” 5Respondents ambiguous, concede that the term “available” is as it economically could mean technologically feasible or feasible. But either any ambiguity largely Regardless in the term irrelevant. “available” is “available,” of the criteria the EPA would technology that render a still technology have to is the “best” one. And as determine which available may involve above, discussed well consideration determination technology’s benefits. relative costs and hyphen between the words “conven The statute not contain does statutory term, “pollutant.” pollutant” “Conventional is a tional” and 1311(b)(2)(E) § however, 1314(a)(4), § see and it is clear that in S. C. U. technology.” than adjective “pollutant” rather “control The modifies hyphen makes that clear. §1316 certain
Finally, subjected of new categories point sources to “the greatest degree effluent reduction which Administrator determines to be achievable through ap- of the best available demonstrated control tech- plication ” nology. 1316(a)(1) § 1316(b)(1)(B). (We (emphasis added); test.) shall call this the “BADT” provision issue here, effluents but applicable water cooling intake structures, have described, “the best tech- as we requires, nology minimizing available adverse environmental impact,” added). (We (emphasis shall call this the test.) “BTA”
The first four of these tests are elucidated by statutory factor lists that their guide To implementation. take the standards order of (presumed) increasing see stringency, supra, Stone, Crushed at 69-70: In the BPT test applying the EPA is consider, instructed to other among factors, “the total cost of application relation to the efflu- ent reduction to be 1314(b)(1)(B). benefits achieved.” consider “the rea- the BCT test it is instructed to applying relationship sonableness between the costs of attain- *12 a reduction in effluents and the effluent reduction ben- 1314(b)(4)(B) added). efits derived.” (emphasis And in the BATEA and BADT applying tests the EPA is instructed to consider the “cost of such effluent achieving reduction.” 1316(b)(1)(B). 1314(b)(2)(B), §§ There is no such elucidating to the BTA test at language applicable issue here. To facili- the tate texts of these five comparison, tests, the clarifying them, factors to and the applicable entities to which they are set in the forth apply Appendix, infra.
The in Circuit, Second the use of rejecting EPA’s cost- in benefit relied analysis, part on that propositions (1) cost-benefit is analysis precluded under the BATEA and (2) tests; that, BADT insofar as the permissibility (the analysis concerned, is the BTA one test at here) is to be treated the same as issue those two. See 475 3d, at 98. It is not to us first F. obvious that of these correct, point, not that pursue is but we need
propositions is cer- It do not with the second. assuredly since we agree BTA for the conclude that reasonable to tainly agency what those other not be only test need interpreted permit It has Its text theirs. tests is not identical permit. two modest adverse environ- goal relatively “minimizing of “elim- the BATE A's mental with impact” compared goal of all And it is unencum- discharge inating pollutants.” of the sort specified statutory provided bered factors two can be tests, reasonably other which omission those that the EPA is accorded greater to suggest interpreted in its content. discretion determining precise the mere that and the that fact argue dissent Respondents 1326(b) cost-benefit analysis does authorize expressly other test, tests, BTA it so for two though for the does an intent to forbid its use. This too surely proves displays it of the other au For while is true that two tests much. all true it is also that thorize cost-benefit analysis, four authorize some consideration of other tests expressly if and the dissent’s conclusion re Thus, respondents’ costs. 1326(b)’s §of is it correct, silence the import garding no consideration the BTA test permits true that fortiori whatsoever, not even cost the “cost-effectiveness” Circuit that the Second see analysis approved, “feasibility” post, supra, dissent would approve, inference that re acknowledge. respondents is, would from dissent draw the silence and the spondents 1326(b) §as is silent not with event, only any implausible, with all but analysis poten to cost-benefit respect respect If silence here factors. implies prohibition, relevant tially any not consider factors then implementing the EPA could impossibility. eminently It is logical obvious —an §1326(b)’s silence is meant to conclude reasonable *13 than a to refusal tie the hands agency’s more nothing convey used, should and if so analysis cost-benefit be to whether as to what degree. post, 238-240, to dissent’s see
Contrary suggestion, Trucking Assns., American in Whitman v. decisions our American Textile Insti- Inc., (2001), U. S. Mfrs. Donovan, tute, Inc. (1981), do undermine 452 U. S. not Trucking, American In we held that this conclusion. Act, Air in Clean its statu- “interpreted text of 109 . . , context . bars cost and historical unambiguously tory in air standards under that setting quality considerations” S., at 531 U. 471. relevant con- provision. “statutory in other the Clean Air Act that provisions text” included §109 consideration of whereas costs, authorized expressly Trucking Id., at 467-468. American not. thus stands did that for rather unremarkable sometimes stat- proposition silence, context, when viewed in is utory best as interpreted discretion. For the ear- reasons discussed limiting agency 1326(b)’s silence cannot bear that lier, interpretation. Textile, American relied in Court on a stat- part failure to mention
ute’s cost-benefit analysis holding the relevant was not in cost- agency required engage certain health and stand- analysis setting safety benefit Chevron, But S., 452 U. at 510-512. under that an ards. required not not that an is do so does mean agency agency permitted do so. is not 1326(b),
This extended consideration the text that with the text factors comparison statutory appli- Act, of the Water lead cable to four Clean parallel provisions it was well to the conclusion within the bounds of us EPA to conclude that reasonable cost- interpretation argu- forbidden. Other analysis categorically benefit form of available to such a may rigorous ments be preclude which under the analysis was prescribed BPT standard, which required weighing statute’s former “the ... against total cost of application technology” “the supra, 221. But that achieved.” See ques- benefits be is not before us. tion
In Phase II the here the requirements challenged EPA to avoid extreme between only disparities costs and sought benefits. limited variances the agency from Phase II “national standards” to performance circumstances where the costs are than the of “significantly greater benefits” com- 125.94(a)(5)(h). 40 CFR In pliance. defining “national standards” themselves the EPA assumed performance of whose technologies benefits application “approach those estimated” for closed-cycle at fraction cooling systems of $889 the cost: million per year, 41666, Fed. as com- Reg. (1) with at least billion pared per $3.5 to year operate compli- id., (or ant closed-cycle cooling systems, at 41605 billion $1 similar per year on impose requirements a subset of Phase II facilities, id., (2) 41606), at reduction in significant id., at 41605. And of the energy altered output facilities, the EPA’s finally, assessment of the finan- relatively meager cial benefits of the II Phase that it regulations adopted— reduced and entrainment of impingement 1.4 billion aquatic id., organisms, 41661, XII-6, Exh. with annualized use million, id., benefits of 41662, $83 and nonuse benefits id., indeterminate value, at 41660-41661 —when compared annual million, costs of $389 demonstrates quite clearly did not select agency the Phase II regulatory require- ments because their benefits their equaled costs. conclusive,
While not it tends to surely show that EPA’s current ais practice reasonable and hence legitimate exercise its discretion benefits weigh costs against been agency has this proceeding essentially fashion Dept. See Alaska for over 30 years. Environmental EPA, Conservation v. 487 (2004); Barnhart U. S. Walton, (2002). 212, 219-220 535 U. S. As as 1977, the early require that, agency determined while does not it is also analysis, not reasonable to “interpret [1326(b)] Section as requiring use of technology whose cost wholly disproportionate environmental benefit to be Hampshire, Service re Public Co. New gained.” 332, 340 E. D.A. See also In re Central Hudson Gas Corp., Opinions, Electric General Counsel NPDES (“EPA 29, 1977) pp. (July ultimately Permits, 371, 381 No. present demonstrate must value of the cumulative cooling annual cost modifications to water intake struc *15 wholly proportion magnitude not out tures is to the of the gains”); environmental estimated Seacoast Anti-Pollution (CA1 1979) League Costle, 597 (rejecting F. 2d 306, 311 challenge permit to an EPA part decision that was based in agency’s on the determination that further restrictions “‘wholly disproportionate any would be environmental ”). prior “wholly disproportionate” While benefit’ the EPA’s may be “sig standard somewhat different from its current nificantly greater nothing than” standard, there is in the permissible that statute would indicate that the former is a interpretation while the latter is not. regulations,
Indeed, in its review the EPA’s I Phase recognize permits Second seemed to Circuit analysis. considering some form of cost-benefit a chal- lenge rejection dry systems7 cooling EPA’s as the technology “best for available” Phase I facilities, the Second certainly Circuit noted that “while it sounds substantial that dry cooling percent is 95 closed-cycle effective more than cooling, undeniably repre- it is relevant that that difference relatively improvement closed-cycle sents a small over cool- very significant Riverkeeper, at 3d, cost.” 358 F. rejecting 194, n. 22. And in the decision below use analysis regulations, II the Phase the Second interpreted nonetheless Circuit “best available” mandating only technologies reasonably as those that can “be industry.” borne 3d, 475 F. But 99. whether it is particular may depend to bear a “reasonable” cost well on 7Dry systems cooling heat, use air accordingly drafts to remove or no surrounding remove little water from water sources. See 66 Fed. Reg. 65282 benefits; if the relevant factor was the fea- resulting only costs, of the their reasonableness sibility would be irrelevant. In the last even analysis, respondents ultimately recognize that some form of cost-benefit is analysis permissible. They acknowledge statute’s so language “plainly toas EPA to require constricted industry petitioners require billions save one more fish or spend Brief plankton.” for al. This Respondent Riverkeeper, Inc., et 29. concedes of at least some cost-benefit principle permissibility —the we see no analysis basis for its use statutory limiting —and de are minimis rather to situations where the benefits than disproportionate. significantly
[*] [*] [*] We the EPA conclude relied on cost- permissibly benefit analysis the national setting stand performance and in ards providing cost-benefit variances from those standards of the Phase II part regulations. The Court of *16 in reliance on the use Appeals’ part of cost-benefit agency’s in analysis cost-benefit invalidating site-specific variance 3d, provision, error, F. was therefore in as was remand of its the national standards for clarifi performance cation of whether cost-benefit was analysis impermissibly used, id., at 104-105. We of course no view on express bases for the Second Circuit’s remand which remaining did on the depend cost-benefit permissibility analysis. id., 110, 113, 115, 117, 120.8 See of the judgment Breyer 8Justice would remand for the additional reason of what he regards inadequate agency’s explanation change as the of the in its crite “ relationship rion for variances —from of costs to benefits that ‘wholly is disproportionate’” “‘significantly greater.’” Post, to one that is at 236 (opinion concurring part part). question in dissenting That can bearing have upon analysis, no whether the EPA can use only question presented us, which is the any case, here. It seems to ample. explanation explained the EPA’s was It the “wholly out proportion” inappropriate existing standard was for the facilities sub ject II lack greater Phase rules because those facilities “the flexibil- reversed, is and the cases are remanded of Appeals Court consistent with this opinion. for further proceedings
It so ordered.
APPENDIX *17 selecting the of their intakes location ity available new facilities associated with to the costs technologies at lower costs relative installing impracticable facilities,” “economically because retrofitting existing costs, . energy production . . production energy prices, on impacts incurred costs existing II facilities large numbers of Phase occur if could greater’ ‘wholly but not out than ‘significantly more than were Reg. 13541 Fed. in the EPA’s record.” to the costs proportion’ *18 Breyer, dissenting Justice concurring part part. *19 statutory agree with the
I Court lan- that the relevant Agency guage authorizes the Environmental Protection (EPA Agency) compare Ante, benefits. costs and legislative drafting history 217-223. Nonetheless the and provisions, history 304, related 86 §§301, of L. 92-500, Pub. §§ 850, 1311, 1314, as make 844, amended, Stat. 33 U. C.S. sponsored legislation clear that those who the the intended forbidding, restricting, though law’s text be read as comparisons. apply of the use And I would accordingly. text
I provides than that, Section not later effluent lim- point require application itations for of sources shall the §301(b)(1)(A), practicable technology,” “best control 86 Stat. (later added); (emphasis that, and not later than 1983 1989), categories extended to effluent limitations for and point require application classes of sources shall of the technology economicallyachievable,” “best available ibid, added). (2)(A), 304(b), (emphasis in turn, Section iden- Agency tifies the the shall factors that take into account in (1) determining practicable technology” “best control and (2) technology.” (emphasis “best available Stat. added). respect provides
With to the first, statute Agency factors taken into account “shall include application of total cost of of consideration relation reduction effluent benefits to be achieved from application... such such other factors as the Administra- § 304(b)(1)(B), appropriate.” respect tor deems ibid With says Agency to the second, statute that the “shall take achieving into account... the cost such effluent reduction” appro- as the “such other factors Administrator deems §304(b)(2)(B), priate.” ibid. makes the statute reflects drafting clear that history
The the House version the legislation, a compromise. “the economic, social, was to consider cost and the effluent reduc- such impact achieving and environmental “best both “best determining practicable” when tion” Sess., 2d H. R. 92d technology. Cong., available” (1972) (as (b)(2)(B) from 304(b)(1)(B), §§ Commit- reported tee). House the “best available explained Report was standard needed —as opposed mandating technology” “the dif- discharge pollutants the elimination —because of 100 percent the cost elimination of pollutants ference to the cost of of 97-99 of the percent removal compared can bene- in an effluent far reasonable exceed any pollutants cases, In most of removal of the to be achieved. cost fit H. R. few increases points expo[n]entially.” last percentage *20 (1972). 92-911, No. p. Rep. was to “the version, consider Agency Senate when reduction” such effluent achieving determining
cost and “best available” technology. “best practicable” both (1971) (b)(2)(B) Sess., 304(b)(1)(B), §§ 2770, 92d 1st Cong., S. Committee). (as Report explains from The Senate reported at a . . which “the must be available cost . Rep. determines to be reasonable.” S. Administrator (hereinafter (1971) But it said 92-414, Rep.). S. p. No. costs and benefits. about comparing nothing of the lan- a House’s The final statute reflects modification an adoption to “best and practicable,” with guage respect available” with to “best respect Senate’s language of the (1972). final The 92-1236, 124-125 pp. Rep. Conf. No. S. costs to compare does not Agency statute require but technology,” available determining when “best benefits a comparison. it such does expressly neither forbid history support- the legislative evidence The strongest in- that Congress respondents’ position namely, — de- benefits when forbid costs comparisons tended to found be technology” the “best available termining —can provisions a written discussion of the Act’s distributed to principal the Senate Senator Muskie, Edmund the Act’s sponsor, Report when he submitted the Conference for the Cong. Senate’s consideration. 118 Rec. The part points relevant of that that, discussion out toas “best practicable technology,” requires application the statute “balancing test between total cost and effluent reduction 304(b)(1)(B). Id., 33696; benefits.” see But as to “best technology,” it available states: “While cost be a should fac- judgment, tor balancing in the Administrator’s no test will 304(b)(2)(B). required.” be Ibid.; see And Senator Musk- speaks ie’s “evaluating] discussion later of the . . . pollutant what discharge needs to be done” to eliminate regard achievable,” “what is both “without to cost.” Ibid. language suggests, sponsors As this the Act’s had reasons minimizing investigation upon, EPA’s of, and reliance comparisons. preparation of formal cost- analyses benefit thereby can take delaying too much time, regulation. sponsors analyses And the feared such emphasize easily quantifiable would quali- factors over more (particularly tative factors environmental factors, for exam- ple, preserving fish). species value nonmarketable Rep., they hoped See S. 47. Above all, minimizing comparisons the use of cost-benefit develop- would force the cheaper technologies; ment of doing control so, whatever the initial eventually inefficiencies, cheaper, would mean cleanup. more effective id., See at 50-51. *21 sponsors’ language
Nonetheless,
the
neither
the
nor
under-
lying
requires
way
rationale
the Act to be read in a
that
comparisons. Any
would
pro-
cost-benefit
such total
forbid
hibition
every
would be difficult to
enforce,
real choice
requires
weigh
against
advantages
a
to
decisionmaker
disad-
vantages,
disadvantages
(often
can be seen in terms of
quantifiable)
prohibition
costs.
an
Moreover,
absolute
bring
would
respondents
about irrational results. As the
say,
require plants
themselves
it would make no
to
sense
to
billions to save one more fish or
Brief for
plankton.”
“spend
et
if
Ine.,
al. 29. That is so even
Riverkeeper,
Respondent
somehow afford those
it is
might
the
billions. And
industry
so in an
of limited
available to
age
resources
particularly
environmental
where
much
problems,
deal with
too
grave
one
wasteful
devoted to
problem
well mean
expenditure
may
fewer
resources
available
deal effectively
to
considerably
serious)
with other
more
problems.
(perhaps
Muskie used nuanced
Thus
which
Senator
one
language,
to
can read as
the
a
leaving
to
degree
authority
make
in a
manner
is
comparisons
that
sensitive
to
need for such
both
comparisons and
the concerns
that
the law’s
sponsors expressed.
relevant statement
requires
various
by listing
factors
the statute
begins
Administrator
take into account when
applying
to “classes and
phrase “practicable”
categories.”
Cong.
It
that,
Rec. 33696.
states
when
so,
Administrator
doing
must
(as
the statute
a
apply
be-
specifies)
test
“balancing
Ibid. At
tween total
cost
effluent reduction benefits.”
time,
the same
it seeks to reduce the likelihood that
the Ad-
ministrator will
too much
place
weight upon high costs by
adding
test “is intended to
balancing
limit the appli-
cation of technology
where the additional
ef-
only
degree
is
fluent reduction
out of
wholly
proportion to the costs of
Ibid.
level of
achieving”
“marginal
reduction.”
Muskie’s statement
then
Senator
considers the “different
test”
the statute
requires
Administrator
apply
the “‘best available’”
Ibid.
when
determining
technology.
added).
test,
Under that
(emphasis
Administrator
“may
consider
a broader
alternatives.”
range
technological
Ibid.
“‘best available’
And
what
is
for a
determining
class,
the Administrator
category
expected
apply
the same
involved in
principles
making
determination
practicable’
‘best
. . .
as to cost-benefit
except
analysis.”
Ibid,
added).
(emphasis
is,
That
cost
be a
should
“[w]hile
Ibid,
required.”
no
factor...
test will
balancing
be
(empha-
*22
added).
by
“[t]he
Rather,
be
sis
Administrator will
bound
Ibid,
added).
(emphasis
reasonableness”
a test of
“
”
that the ‘best
in-
adds
available’
standard “is
statement
increasingly
press
to reflect the need to
tended
toward
Ibid,
added).
higher
(emphasis
of control.”
And
levels
‘economically
is
of what
achievable’
“the reasonableness
an evaluation of what
be
should
needs to
done to move
reflect
discharge
pollutants
of the
the elimination
toward
through
application
is
tech-
what
achievable
of available
Ibid,
added).
regard
nology
(emphasis
cost.”
—without
deliberately
language
I
believe,
said, that
I
as
this
is
nu-
says
The statement
anced.
where the statute uses
practicable,”
requires comparisons
term “best
the statute
benefits;
but where
costs
the statute uses the term “best
Ibid, (em-
comparisons
“required”
available,” such
are not
added).
phasis
say
Muskie
not
all
Senator
does
efforts
compare
costs
benefits are forbidden.
points
Moreover, the statement
out that where the statute
available,”
uses the
term “best
Administrator “will be
Ibid,
added).
by
(emphasis
bound
a test of reasonableness.”
apply
It adds that the
should
this
Administrator
test
way
objective,
closely
moving as
its ideal
reflects
possible
technologically
pollution.
to the elimination of
It
says
thereby
e.,
consider,
should
i.
take
Administrator
pollution
account,
into
how much
would
remain if the
still
applied everywhere—
best
were to be
available
say
regard
that the
“without
to cost.”
It does
Ibid.
solely on the re-
Administrator must set the
based
standard
(It
be
sult of that determination.
would
difficult
reconcile
reading
language
alternative,
of this
with
more absolute
reasonableness.”)
earlier “test of
Senator’s
may,
say
must,
I
read
Musk-
that one
not that one
Senator
differently
way.
put
it
would
ie’sstatement this
But to read
the test of reasonableness
conflict with
any
threatening
impose
far in excess of
ben-
massive costs
years
its
the EPA has read the statute and
his-
efit. For 30
*23
EPA
that
not be
way.
thought
in
The
has
it would
tory
this
use of
interpret Section
requiring
“reasonable
en
whose cost
to the
wholly disproportionate
In re Pub. Serv.
Co.
benefit to be
gained.”
vironmental
of
Station,
(Seabrook
2),
1
N. H.
Units
332,
1 A. D.
340
E.
Seacoast Anti-Pollution
remanded on other
(1977),
grounds,
Costle,
(CA1 1978)
added);
II additional us, however, an prob- eases before present from variances consider a rule permits lem. We here facility if that its costs national standards demonstrates comply “significantly greater be the benefits of would than 125.94(a)(5)(ii) “signifi ing.” 40 The words CFR cantly greater” EPA has tradi differ from the words namely, “wholly tionally standard, used to describe its Perhaps disproportionate.” EPA does mean to ifBut it means the new make much of that difference. EPA must test, new and different words set forth a changed adequately explain why Motor it has its standard. States, Farm Mut. Vehicle Inc. State Assn. United Mfrs. (1983); Co., U. 42-43 National Automobile Ins. S. Brand X Internet Cable & Telecommunications Assn. v. *24 (2005); Services, Univ. 967, 545 U. Thomas S. Jefferson (1994) (Thomas, Shalala, J., n. 3 512 U. S. dissenting). successfully explained
I am not the convinced the EPA has change. for the fact that exist- basis the It has referred to flexibility ing have than with re- facilities less new facilities spect installing technologies, pointed has new and it special, Reg. energy-related impacts regulation. Fed. rule). (2003) why (proposed explained it has But “wholly disproportionate” the traditional standard cannot do (for job now, when the EPA has used that standard exist- otherwise) apparent facilities and with success in the g., past. supra. See, Hudson, e. Central Consequently, majority, like the I would remand these majority Appeals. I cases to the Court of But unlike the permit EPA that court to the cases to the so would remand “wholly apply dispro- that can either the EPA its traditional portionate” provide adequately ex- standard or an reasoned planation change. for the Stevens,
Justice with whom Justice Souter Jus- Ginsburg tice join, dissenting. (CWA), of the Clean Water Act 33 U. S.
Section C. §1326(b), governs powerplant water intake which industrial structures, provides the Environmental Protection (EPA or Agency) “shall that such require” struc- Agency the best “reflect tures available technology minimizing environmental The EPA has impact.” adverse interpreted to authorize that mandate the use of cost-benefit analysis 316(b). regulations instance, under promulgating For Agency’s interpretation, under that would technology as the otherwise best available need not be used if qualify its costs are than the benefits” “significantly greater of com- 125.94(a)(5)(ii) (2008). 40 CFR pliance.
Like the Court I am Appeals, convinced that 316(b). has text of plain Unless costs misinterpreted are so the best is not high “available,” Con- they has decided are gress outweighed bene- fits adverse minimizing environmental Section impact. 316(b) neither nor expressly authorizes EPA to implicitly use cost-benefit when analysis standards; setting regulatory it read, such use. fairly prohibits
I the EPA, As typically performed by cost-benefit analysis to first monetize costs and requires benefits of a the results, balance and then choose the regulation, reg- with the ulation net benefits. The greatest process par- *25 controversial in the environmental context in which ticularly are financial costs often more eas- regulation’s obvious and ier to than its environmental benefits. quantify And cost- often, benefit if not a result analysis always, yields that does not maximize environmental protection. instance,
For EPA estimated that water in- although take structures kill billion fish each 3.4 and shellfish year,1
1 energy, To produce powerplants gallons industrial of withdraw billions daily powerplants water waterways. of from our Nation’s Thermoelectric percent alone of all See demand 39 freshwater nationwide. withdrawn Energy, Dept, Addressing Energy of the Critical Between Fossil Link (Oct. 2005), 2 http://www.netl.doe.gov/technologies/coalpower/ewr/ Water 41586 (2004), 69 Fed. to calcu Reg. struggled see Agency late the life that would be value aquatic protected id., 316(b) at To regulations, 41661. compensate, under its took a all aquatic the EPA shortcut: Instead monetizing counted those that are commer life, the only species Agency (1.8 harvested, a slice recreationally tiny cially percent of all fish and This narrow impacted be shellfish. precise) in turn skewed the calculation of benefits. focus Agency’s bene life, When the to 2 all attempted value aquatic decided $735 fits measured million.* But when the EPA value to the commercially zero 98.2 of fish not give percent or recreationally harvested, benefits calculation dropped Id., The dramatically $83 million. 41666. —to that its the other 98.2 acknowledged per failure to monetize “ cent of affected ‘could result in serious misalloeation species resources,’” id., 41660, because its com “comparison an accu costs benefits does plete incomplete provide rate of net benefits to picture society.”3
Because benefits can be more monetized in accurately others, some industries than in Congress typically decides it to use agency whether for an appropriate Indeed, this Court has rec analysis regulations. crafting has intended that an ognized Congress agency “[w]hen in cost-benefit it has such engage clearly indicated analysis, face of the statute.” American Textile Mfrs. intent on (all pubs/NETL_Water_Paper_Final_Oct.2005.pdf Internet materials file). 18,2009, Mar. fish visited and available Clerk of Court’s case by “impingement” and shellfish are killed or “entrainment.” Impinge- aquatic organisms trapped against ment occurs when are the screens and grills organ- Entrainment occurs water intake structures. when these EPA, Riverkeeper, Inc. drawn the intake See isms are into structures. (CA2 2007); Reg. 69 Fed. 475 F. 3d 316(b) EPA, Analysis Proposed Economic and Benefits Section Rule, p. (EPA-821-R-02-001, Dl-4 Feb. Existing Phase II Facilities 2002), http://www.epa.gov/waterscience/316b/phase2/econbenefits. Analysis for EPA, Benefits the Final Section Economic and Rule, (EPA-821-R-04-005, p. 2004), Dl-5 Feb. Existing II Facilities Phase *26 http://www.epa.gov/waterscience/316b/phase2/econbenefits/final.htm. Institute, Donovan, Inc. (1981). 490, U. S. Ac- we should not treat a cordingly, silence provision’s as an im- source plicit authority, when particularly such is elsewhere authority expressly granted and it has the alter fundamentally an potential agency’s approach to noted, we have “does regulation. Congress, not alter fundamental details of a scheme in regulatory vague terms or ancillary provisions not, does one might say, hide ele- —it Trucking mouseholes.” Whitman v. American phants Assns., Inc., 531 U. S.
When silence in the interpreting statutory we past, have guidance from a sought statute’s other provisions. Evidence confronted Congress an issue in some of a parts statute, while it others, unaddressed in leaving can demonstrate that meant its silence be decisive. Congress We concluded as Trucking. much in American case, re- Court viewed claim that 109 of the Clean Air Act (CAA), 42 (2000 7409(a) ed.), U. S. C. authorized the EPA to consider costs in implementation ambient air setting quality stand- ards. We read which was silent on the matter, to pro- hibit Agency reliance on cost considerations. After examin- other in which provisions had Congress given costs, consider authority Court “refused to find sections of an implicit ambiguous the CAA author- ization to consider that has elsewhere, costs often, and so S., been expressly granted.” U. 467. si- Studied lence, concluded, we thus can be as much a as an prohibition “no.” explicit Trucking in American
Further motivating Court was the fact incorporating implementation costs into calculus risked decision Agency’s countermanding Congress’ health. The cost of protect public we implementation, said, “is both so health and so full related to indirectly public conclusions drawn from direct canceling potential that it would health effects have been surely expressly men- tioned in had it to be [the meant considered.” Congress text] Id., at 469.
240
American Trucking’s should have the approach guided 316(b). § 316(b) § Court’s of in the of reading Nowhere text does the use Congress explicitly authorize of cost-benefit as it does And the use analysis elsewhere the CWA. of like of analysis, the consideration implementation in American §316(b)’s Trucking, “pad[s]” costs environmen- tal with mandate economic concerns. efficiency tangential Id., American Yet Truck- at 468. the fails majority to follow that case’s obvious relevance to our ing despite inquiry.
II In 1972, amended the to strike careful Congress CWA balance between the demands and its desire country’s energy to protect environment. The Act to required industry adopt advanced of increasingly capable mitigat- technology its all detrimental environmental Not impact. point sources were subject to strict rules at once. Existing plants were time to with the granted retrofit best while technology new were such plants required incorporate technology a matter of realized that tech- design. Although Congress standards nology would some firms out necessarily put of business, see EPA Assn., v. National Crushed Stone (1980), U. S. steady statute’s march was toward stricter rules and potentially higher costs. 316(b)
Section was an integral statutory part scheme. The instructs that standard estab- provision “[a]ny lished to section this title or section 1316 of pursuant this title to a and source shall applicable point require location, construction, design, capacity cooling the best available water reflect technology intake structures adverse environmental minimizing impact.” 33 U. S. C. 1326(b) (2006 ed.) added).4 § The “best (emphasis technology §§1311 provisions, The two cross-referenced also establish standards, applicable the first technology” existing point “best sources provisions and the facilities. second to new reference to these 316(b) any promulgated provisions, rule merely requires under those structure, with applied point incorpo when to a source a water intake rate standards. available,” “BTA,” standard delivers a clear command: To minimize the adverse environmental water intake impact structures, require must the best industry adopt available. 316(b)’s on the observation text Based largely offers little therefore some amount guidance delegates gap- EPA, authority to Court concludes filling to rely has discretion on cost-benefit See analysis. ante, that, at 222-223. The Court assumes specifying *28 how the EPA to determine BTA, intended Congress to discretion to EPA considerable the to how give decide to Silence, in view, the proceed. majority’s represents ambigu- and an invitation the to decide ity for itself which factors should its govern regulatory approach.
The full appropriate analysis consideration of requires the CWA’s structure and legislative history to determine whether cost-benefit contemplated and, if Congress analysis so, under what it circumstances directed the to utilize This it. reveals that approach the EPA Congress granted to use authority cost-benefit in some contexts but analysis others, not and that to not control, intended dele- Congress when gate, analysis cost-benefit should be used. See Chev- U. A. ron S. Inc. v. Natural Council, Inc., Resources Defense (1984).5 467 U. S. 842-843
Powerful evidence decision not to Congress’ authorize in BTA analysis cost-benefit the in the series standard lies majority at the reading announces the EPA’s outset the interpretation BTA “governs if it is a standard reasonable of the statute— necessarily only possible interpretation, interpreta the nor even the Ante, tion deemed most reasonable the This courts.” at 218. obser light commonly that, in puzzling vation is of the as a practice understood step, Congress directly spoken first the precise we ask “whether has to Chevron, S., question Only later, Congress’ at issue.” U. if at 842. clear, is not do agency’s intent we consider the ac reasonableness Id., Assuming ambiguity moving step at 843. to tion. the second to possibility, reflects Court’s reluctance consider the which it later ante, complex,” Congress’ may is “more at laments silence have analysis. to meant foreclose cost-benefit effluent, from outflow, or to adopted regulate standards time as same Passed powerplants. industrial standards effluent limitation here, issue standard BTA on in- requirements strict technology increasingly imposed dis- effluent limitation provision, Congress In each dustry. costs EPA consider allow the to its to willingness tinguished a cost- to conduct allow the Agency willingness its from permitted the extent Congress And to analysis. benefit intended temporary its use was to be analysis, and exceptional. existing standards applied
The first tier would be for which retrofitting particularly plants —facilities “effluent these plants adopt required Congress costly. of the best which shall require application limitations ... available.” control technology currently practicable 1311(b)(1)(A). Because this “best practicable,” U. S. C. to ease transition industry’s standard was meant “BPT,” BPT two Congress regime, gave the new technology-based First, remaining it would be temporary, features: unique Second, it until 1,1983.6 specified effect only July BPT analysis setting a cost-benefit EPA was to conduct *29 of of “the total cost application by considering requirements to benefits be to the effluent reduction in relation technology 1314(b)(1)(B). Permit- from such application.”7 achieved the the EPA ability in BPT analysis gave cost-benefit ting For a limited to the new technology requirement. cushion 6 31,1989. to March the deadline Congress later extended legislation, described the sponsor of the Muskie, the Senate 7 Senator narrow, asserting decidedly under BPT analysis permitted cost-benefit reduction benefits cost and effluent between total balancing test “[t]he that only where the additional technology of application is intended to limit the proportion to the costs wholly of of out degree effluent reduction of any category or for class of reduction marginal level such achieving History Control Act of the Water Pollution Legislative 1 sources.” Commit (Committee compiled for the Senate Print of 1972 Amendments 93-1, p. Library No. 170 Congress), Ser. by the Public Works tee on Hist.) (1973) (hereinafter Leg. time, that its benefits technology a with costs exceeded would not be considered “best.” tier of existing
The second standards technology required econom- adopt technology the “best available powerplants “the achievable” advance national of eliminat- goal ically 1311(b)(2)(A). all In set- discharge pollutants.” “BAT,”8 standard, available this “best or technology,” ting the EPA for de- notably different command gave Congress would The EPA what as “best”: qualify ciding consider, among factors, was to other “the cost of achieving it au- reduction,” such effluent but did not Congress grant to balance costs with benefits of stricter thority regula- 1314(b)(2)(B). in Indeed, tion. Crushed Stone this Court that difference between BPT and BAT was explained in existence of cost-benefit the first and the ab- authority in the at 71 S., sence second. See 449 U. authority (“Similar directions are deter- Administrator for given effluent reductions attainable from the BAT mining except no in BAT total cost is be considered longer assessing benefits”). to effluent reduction comparison The BAT legislative standard’s history supports strongly view withheld cost-benefit Congress purposefully ibid., this for tier See n. 10. The authority regulation. House of and the Senate over the role Representatives split BAT would analysis pláy provision. tool, 92-911, House favored the see H. R. No. p. Rep. it, while the Senate see (1972), Hist. Leg. rejected id., ultimately at 1132. The Senate view id., 1183; pre- in a BAT standard vailed in the final legislation, resulting “not test of cost in relation to effluent that was subject any analysis.” form of any reduction benefits cost/benefit 1977: A of the Clean Water Act of Con- Legislative History of the Federal Water tinuation of the History Legislative (Committee Act Print compiled Pollution Control *30 “BATEA,” parties to the majority calls this refer Although the “BAT,” I. simplicity, and for so will provision as on Environment and Public Works Senate Committee 95-14, of Ser. No. Library p. Congress), for tier reserved was regulatory The third and strictest technol- that incorporate could new sources —facilities point new their initial These facil- into design. ogy improvements demon- ities “the best available adopt were required “BADT,” which Congress strated control technology,” “a . . . which the greatest reflects] described as standard 1316(a)(1). In administer- of effluent reduction.” degree “the cost BADT, directed the EPA to consider Congress 1316(b)(1)(B). But of such effluent reduction.” achieving BADT was to be most standard because meant stringent no analysis. made mention of cost-benefit all, of Congress version of the silence was intentional. The House’s Again, BADT contained an for sources originally point exemption bear economic, social, which “the and environmental costs for economic, no reasonable to the and envi- social, relationship be Hist. That ronmental benefit to obtained.” 798. Leg. did in final demon- this exemption appear legislation reliance on considered, rejected, strates Congress analysis cost-benefit BADT.
It is in this the BTA standard water light regulating intake structures must be viewed. The use of cost-benefit awas critical structure analysis CWA’s component We concern should there- key process. legislative fore conclude that intended to forbid cost-benefit Congress in one which silent analysis the Act in it was on provision the matter when it authorized its use in another.9 expressly argues that, signals prohibition if The Court silence in consideration of all other analysis, it must also cost-benefit foreclose the discretionary potentially setting BTA relevant factors standards. Ante, deeply all-or-nothing reasoning This rests on the flawed at 222. just assumption Congress analysis among treated as one many upon potentially rely which the EPA could BTA. factors establish history Yet, above, explained legislative the structure and the CWA analysis special Congress skep viewed cost-benefit with demonstrate that accordingly. assumption ticism use and controlled its The Court’s
245 Engine g., Allison Co. v. United ex rel. See, e. States Sand Russello ers, States, United 671 (2008); S. U. 464 553 (“[W]here (1983) U. includes S. Congress particular in section one of a but in statute it omits another language presumed is that , . . . it acts generally Congress intention in the inclusion or ally purposely disparate and exclusion” (internal omitted)). marks quotation This is particularly decision that Congress’ true given analysis cost-benefit a temporary would role in the to play exceptional CWA to existing plants transition the Act’s help ambitious environ standards.10 Allowing mental cost-benefit in the analysis standard, BTA a mandate to all permanent applicable power- no such serves plants, instead purpose fundamentally weakens mandate. provision’s I would hold that the EPA Accordingly, is without author- to ity cost-benefit BTA perform stand- analysis setting equivalence read, plainly Properly is thus incorrect. Congress’ silence §in forbids reliance on the tool cost-benefit but does not foreclose considerations, reliance on all other a such as determination whether costly industry so that it is not for to adopt. “available” 1977, Congress technology-based an additional established stand ard, commonly to pollutant referred as “best conventional control technol “BCT,” ogy,” govern pollutants to previously conventional covered 1311(b)(2)(E). the BAT standard. See U.S.C. The BCT standard required consider, factors, EPA among to relationship other “the be attaining tween the costs a reduction in effluents effluent and the reduc 1314(b)(4)(B). Congress expressly tion benefits derived.” author That analysis Congress ized cost-benefit in BCT further confirms treated that authority analysis exceptional cost-benefit as reserved for itself the decide when it be in the would used Act. 11The Court attempts holding by “rigorous cabin its that a suggesting analysis,” “prescribed form of as cost-benefit such the form under the stat standard,” ute’s may permitted BPT setting regu former not be BTA Ante, lations. effectively 223. Thus the Court has instructed perform analysis long it can a cost-benefit so as it does analysis Congress kind of cost-benefit resemble the elsewhere authorized majority’s suggested in the on Agency’s CWA. limit discretion only can read as a concession analysis, typically be cost-benefit performed, may be inconsistent with the BTA mandate. extent the EPA relied on cost-benefit analysis To the
ards. action was con- its BTA establishing regulations,12 law, for foreclosed such reliance Congress directly trary Chevron, S., itself.13 467 U. at 843. Because statute in the certiorari decide whether has only we granted to conduct is no there need authority analysis, *32 the universe of which the EPA to define considerations upon BTA standard. rely can the properly administering to leave it the I would decide how to proceed Agency instance. the first
Ill the Because Court unsettles scheme estab- Congress lished, I respectfully dissent. performance adopted The “national shaped standards” the EPA were
by efficiency expense finding economic concerns at minimizes impact. that best adverse environmental In its final rule- making, Agency require plants adopt declined to industrial closed- cycle coolingtechnology, by recirculating cooling-water requires which less aquatic water to be withdrawn and organisms thus fewer to be killed. (CA2 EPA, 174, 182, 2004); Riverkeeper, Inc. v. F. n. 5 Reg. 358 3d 69 Fed. n. 44. Agency despite acknowledgment This the decided its “closed-cycle,recirculating cooling systems ... mortality can reduce impingement by up percent by from to 98 up per to 98 entrainment Id., cent.” permitted at 41601. The instead plants individual options long resort to a “suite” of so as the impinge method used reduced ment and more percent, entrainment modest amounts of 80 and 125.94(b)(2008). respectively. Agency permitted See 40 CFR also plants a site-specific individual to obtain variance from national per (1) they prove formance if compliance standards could costs would be “significantly than” those the greater when considered establish (2) standards, compliance significantly costs “would be greater complying applicable performance than the benefits of with the 125.94(a)(5). standards,” § 13Thus, Agency’s past “wholly disproportionate” reliance on stand ard, analysis, ante, a mild variant of cost-benefit See irrelevant. at (majority opinion). “Congress Because directly spoken 224-225 has issue,” Chevron, question S., the precise 467 U. longstanding practice yet impermissible agency ripen permissible cannot agency into practice.