Find Legal Information

Three consolidated cases center around whether or not the EPA surpassed its federal authority by weighing the pros and cons of systems to be used at water intake cooling structures rather than simply employing the most advanced technology available on the market. The claims, brought by environmental groups and corporations, allege that the EPA's cost/benefit analysis violated the Clean Water Act (CWA) by leading to the use of structures that were insufficient to protect aquatic organisms from being harmed or killed as required by the CWA.

Does Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorize the Environmental Protection Agency (EPA) to compare costs with benefits in determining the "best technology available for minimizing adverse environmental impact" at cooling water intake structures?

Yes. The Supreme Court held that the EPA was permitted to use a cost-benefit analysis in setting national performance standards for cooling water intake structures. With Justice Antonin G. Scalia writing for the majority and joined by Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito, the Court reasoned that under 33 U.S.C. 1326(b), the EPA has discretion to determine the extent of adverse environmental impact that should be reduced in setting national performance standards for cooling water intake structures. With this discretion, comes the authority to use a cost-benefit analysis in setting national performance standards.

Justice Stephen G. Breyer wrote separately, concurring in part and dissenting in part. He agreed with the majority that the EPA was authorized to use a cost-benefit analysis in making its determinations. However, he noted that the drafting and legislative history of 33 U.S.C. Section 1326(b) indicate it was intended to restrict the use of cost-benefit analysis and consequently he found the EPA's reasoning deficient in employing its cost-benefit analysis. Justice John Paul Stevens dissented and was joined by Justices David H. Souter and Justice Ruth Bader Ginsburg. He argued that the plain language of the relevant statute indicates that the EPA was required to set a standard that cooling water intake systems use the "best technology available" and therefore impermissibly used a cost-benefit analysis in setting the new standard.