On December 2, the Supreme Court heard arguments in the case of Entergy Corp. v. Riverkeeper. The constitutional issue in question is whether the Environmental Protection Agency (EPA) may take into account the costs of a given technology when assessing what is required of industry when utilizing bodies of water for cooling structures. The argument in the case turns on how to interpret the phrase “best technology available for minimizing adverse environmental impact” in the Clean Water Act. The Supreme Court’s decision (expected in the spring) could affect 500 power plants and manufacturing sites across the country, which collectively draw in 214 billion gallons of water per day. Case in point: Indian Point, Entergy’s Buchanan-based power plant, withdraws billions of gallons of water a day from the Hudson River, killing millions of fish every year. Riverkeeper maintains that the Clean Water Act does not allow federal officials to take into account how much it costs to implement the best technology available when considering cooling water intake structures, and that by implementing a closed-cycle cooling system, Indian Point could reduce its water intake from the Hudson River by up to 97 percent.
Riverkeeper, which has been advocating on behalf of the Hudson in various incarnations since 1966, when it began as a group of concerned fishermen, is helmed by Alex Matthiessen. Since taking over in 2000, Matthiessen has transformed Riverkeeper, increasing membership and adding staff while strengthening the organization’s enforcement presence on the river and developing long-term strategies for preservation through partnerships with leading academic and research institutions such as the Lamont-Doherty Earth Observatory and the Columbia University School of Law.
I spoke with Matthiessen in early December about Riverkeeper’s day in court and the future of the Hudson River.
How do you think the argument went before the Supreme Court?
I think it went very well. I think the good news for Riverkeeper and all those who love and want to protect the Hudson and other waterways around the country is that we clearly have the stronger case, in our view. We think that it would be very difficult for the Supreme Court to rule in favor of a cost-benefit analysis, because there’s just nowhere in the statute that would give them the basis to make that decision. This is a court that generally boasts that it doesn’t legislate from the bench.
Justice Roberts did pointedly suggest during arguments that “industry could have borne these costs two years ago, but they probably can’t today.”
Well, that’s not really the point. That, again, would be legislating from the bench because that’s not what the Clean Water Act says. It doesn’t talk about when in our economic cycles an industry can afford things versus not afford things. Riverkeeper does subscribe to the idea that while there shouldn’t be a cost-benefit analysis, there should certainly be a cost-sensitivity. But the way we and many others read that is simply that you first have to establish what the best technology is. In this case it’s clearly closed-cycle cooling. There’s just no dispute about that. Now, we also subscribe to the idea that you can look at it in terms of closed-cycle cooling, or its equivalent.
What would be an equivalent technology?
There’s lots of ways to get there, but essentially the equivalent would be some other combination of approaches that would reach your 95 percent [reduction of water intake from the Hudson]. And obviously, if closed-cycle cooling is 97 percent, we don’t necessarily demand that it has to be 97 percent, but it has to be very close to that. So if there is a series of measures that a plant can take to get to, say, 95 percent then we would consider that best technology available or its equivalent. And if there’s a cheaper way for a company to do it, then we’re okay with that. But what you can’t do is what the EPA is trying to do, which is to give the industry huge latitude and discretion as to what kind of protection they provide.
Indian Point is an interesting example. For Indian Point, the DEC [New York State Department of Environmental Conservation] did issue a draft permit that required a closed-cycle cooling tower. And, of course, Indian Point, or Entergy, is fighting that. But I think the reason that Entergy did it in that case is that the volumes are so huge that there is no set or combination of smaller measures that, together, would get you anywhere close to that 95 or 97 percent that the closed-cycle cooling system would. The plant also has the physical space to do it, and they certainly have the resources to do it.