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.
I imagine Entergy is stating that they do not have the wherewithal to build a closed-cycle cooling system.
Well, that’s absurd. This company, first of all, bought the plants in 2000 and 2001, respectively. And they’re applying for a new license to extend their current operating license for another 20 years beyond their current expiration dates, which are 2013 and 2015. So, in theory, if they are successful in their pursuit of that new license, they will be operating those plants for 33 and 35 years, the two units. They are making over $2 million a day in profit—not just in revenues, but in profit from that plant. So, in a years time, they’re making approximately $730 million dollars. So let’s split the difference between Entergy’s estimate of $1.4 billion to build a closed-cycle cooling system and our estimate of roughly $300 million. Let’s say it’s three quarters of a billion dollars. Well, that means in a year’s time, with a year’s profit, they can cover that expense. And they still have another 32 and 34 years total, to keep those profits.
This company and the other owners of Indian Point have basically gotten a free ride for over 30 years. The Clean Water Act was passed in '72, and they were supposed to start upgrading their technology back then. If they were smart, they would have stashed away some portion of their profits, so that when the day came when they had to build these systems they’d have the money to do it. They know exactly what they’re doing, and they’ve been avoiding the clear requirements of the law for a very long time. They’ve got to pay up.
What are the most pressing issues facing the Hudson in the next 10 years?
Well, I think sewage is definitely one of the most pressing. We’ve made so many gains over the last couple of decades in terms of improving the water quality of the Hudson. The Hudson used to be an open sewer. We’ve made enormous progress, but now I think that that progress is starting to slip. And one of the primary reasons is that our sewage infrastructure up and down the river (and frankly, across the country) is starting to fail. It’s old, it’s out of date, it’s in poor repair. There’s just been a huge drop-off in federal funding, which traditionally provided the states and the localities the money they need to maintain and upgrade these plants.
The federal government used to contribute approximately 78 percent of a given state’s total spending on sewage infrastructure upgrades and maintenance. That percentage has dropped from 78 to 3 percent, so essentially they’ve almost zeroed out their support for upgrading sewage. And these systems are extremely expensive, and any municipality relying on property taxes can’t possibly afford to spend a billion or a billion and a half dollars on a new sewage treatment plant or an upgraded sewage treatment plant. We’ve got a real problem, and it’s not dissimilar from the country’s general infrastructure—railroads, bridges, tunnels, and everything else—but what’s going to be affected is the Hudson itself, because sewage plants discharge their effluent into the Hudson River.
We’ve also got to deal with this issue of the massive fish slaughter that’s been happening on the Hudson for many, many years with these power plants. These four plants [Indian Point, Danskammer, Roseton, and Bowline] withdraw something like four-and-a-half or five billion gallons of water each day from the Hudson and in the process they kill enormous numbers of fish. We’ve been looking at the trends data over the last 20 years and our scientists determined that 10 of 13 of the Hudson’s signature species are in various states of decline. Some are very close to extirpation; one or two seem to have disappeared from the Hudson altogether. Now, there are many variables and many factors that are probably contributing to the declines in fish, but one of the major ones is definitely power plant fish kills.
Are you hopeful about the future of the Hudson River?
Generally speaking, yes. One thing that’s very helpful is that we have a much more engaged constituency. Part of the benefit of having cleaned up the river over the last 40 years is that it’s much cleaner, and therefore people are using it much more. Not only are people visiting the river in record numbers, probably hundreds of thousands, if not millions, each year visit the river one way or another, whether it’s walking along it, or bird watching, or hiking, canoeing, boating, picnicking, swimming—whatever it is. And that’s great, because the more people are using it, the more constituents we have to protect it. That’s a trend that should help us as we deal with these more seemingly intractable issues.