The Clean Water Act, Please, and Hold the Fried Fish

On Tuesday, the U.S. Supreme Court heard oral argument in Entergy Corp. v. EPA. The case involves a challenge by electric utilities to new EPA regulations requiring power plants to protect aquatic life by regulating “cooling water intake structures” at existing power plants. Billions of fish, shellfish, and other aquatic organisms are drawn into these cooling intake structures and killed yearly.

So basically the Court gets to decide between protecting all those creatures, or signing off on a very large fish fry.  But, as bad as the outcome in this case could be for aquatic life generally, the argument that industry is making before the Court suggests that it may have its eye on even bigger game. Not only do they seek to delay or scuttle cooling intake regulations, they’re making an argument that, if adopted by the Court, would threaten the gut the very structure of the Clean Water Act. CPR member scholar Bill Andreen describes what’s at stake bluntly: “if industry prevails in this case,” he says, “the Supreme Court will turn back the clock to the 1960s.”

Here’s how the time traveling would work. The power companies assert that EPA should apply a cost-benefit analysis when determining the technology standard to reduce the environmental impact of cooling intake structures. That may sound like a modest proposal, but in fact it is a radical departure from how the Clean Water Act has worked for the past 35 years.

When the Act was passed in 1972, it was a significant and altogether positive departure from previous federal policy on water pollution. Before the Clean Water Act, dischargers had the right to pollute, and water pollution was a given. We simply gave up on some rivers, for example, considering them “industrial” rivers. We sold those rivers down the river, as it were, because the law of the era required proof that certain pollutants caused specific environmental harm before regulating.  Lots of fingers were pointed, but nothing was done, because nobody could be absolutely sure who made the mess.

The Clean Water Act changed that murky premise to a radically clarifying one:  let’s stop the mess on the front-end instead of figuring out how to clean it up on the back-end. The Act did that by requiring “point source” polluters (those who produced pollution whose source could be identified) to apply end-of-pipe controls that cleaned or mitigated the pollution. Crucially, these controls use uniform, “technology-based” standards established by EPA that apply across an entire industry. In other words, the same technology applies whether the polluter is the only discharger into a given waterbody or one of many discharger. Thanks to the Clean Water Act, there is no right to pollute, no matter how clean (or dirty) the receiving waters may be. All pollution is harmful; all polluters are treated equally. (See CPR’s report, The Clean Water Act: A Blueprint for Reform, for more discussion about the Act and the importance of technology-based standards).

A Supreme Court decision allowing the kind of cost-benefit analysis that industry seeks, however, would dismantle the Clean Water Act’s essential design. Although the Act directs that EPA utilize a technology-based standard (the “best technology available”) for cooling water intake structures, industry has argued in the Entergy case that, when setting the standard, EPA should balance the environmental benefits of the standard against the costs to industry of adopting the standard. This turns the Act upside-down. Instead of focusing on promoting end-of-pipe controls to stop pollution, cost-benefit analysis forces EPA to turn instead to evaluating the environmental impact pollution will have on the receiving waters and aquatic wildlife. If that has a familiar ring, it’s because that’s exactly the circumstance that the Clean Water Act was intended to fix.

Meanwhile, while cost-benefit analysis is touted by industry as an efficient way to go, the hard reality is that it is notoriously expensive and time-consuming for the government to do. Instead of evaluating the technological capacity of a pollution control, EPA would have to undergo a complicated analysis both of the science (what are the environmental benefits of the regulation) and of the economic costs to industry. So bring on the aquatic experts. The fishery guys. The industry scientists. The environmental scientists. The economists who will somehow arrive at a price for the value of aquatic life. The economists who will predict the decline and fall of the utility industry as we know it. As several of CPR’s member scholars have pointed out repeatedly, cost-benefit balancing is more far more expensive and time-consuming than technology-driven controls. (See, for example, Frank Ackerman and Lisa Heinzerling discussing cost-benefit analysis in a CPR Perspective). And what industry has in mind in Entergy could make it even worse. One of the benefits of technology-based standards is that they apply uniformly across an industry. In Entergy, however, industry contends that cost-benefit analysis would be required both on a national and site-specific basis. That means a different cost-benefit solution for every power plant intake. The analysis would never end.

Finally, putting the debate about whether cost-benefit analysis is a sensible policy tool aside, the bottom line is that Congress declined to use it when it enacted the Clean Water Act generally and the section of the Act that addresses cooling intakes in particular. As a group of environmental law professors (including CPR scholars Bill Andreen, Bill Buzbee, Dan Farber, Rob Glicksman, Tom McGarity, Sid Shapiro, Dan Tarlock and Wendy Wanger) put it in their amicus brief to the Court, Congress simply did not authorize EPA to “assess whether a dollar spent on technology saves a dollar’s worth of fish.” 

This is one of those cases where the Court is being asked to engage in a little right-leaning activism. It has a choice of whether to impose its own value judgment that allowing industry to produce electricity in ways that maximize profits at the expense of the environment is better than protecting a few billion fish and other organisms. Or it can show some of that judicial restraint we keep hearing conservatives laud, and decide that the text of the Clean Water Act means just what it says. If the Court chooses the former, we could be looking at one complicated kettle of fish.