WASHINGTON — The Supreme Court ruled today that the government may consider cost in deciding whether to order power plants to undertake environmental upgrades that would protect fish.
The court’s 6-3 decision is a defeat for environmentalists who had urged the justices to uphold a favorable federal appeals court ruling that could have required an estimated 554 power plants to install technology that relies on recycled water to cool machinery.
By reducing water intake, the closed-cycle cooling also results in fewer fish being sucked into the system or smashed against screens. The Environmental Protection Agency estimates water-intake systems at power plants kill 3.4 billion fish and shellfish each year.
The 2nd U.S. Circuit Court of Appeals in New York said that the Clean Water Act does not allow cost to be used when deciding what technology would best minimize environmental impacts.
But Justice Antonin Scalia, writing for the majority, said even the appeals court and environmentalists “concede that some form of cost-benefit analysis is permitted.”
In dissent, Justice John Paul Stevens cited “powerful evidence” that Congress did not want cost-benefit analyses to be used in determining the best available technology for reducing the number of fish killed. Justices Ruth Bader Ginsburg and David Souter also dissented.
All new power plants must use closed-cycle cooling.
But the regulations at issue in the Supreme Court case apply only to older facilities.
Scalia said there is nothing wrong with EPA regulations that allow the use of less costly systems that come close to achieving the same environmental benefits as the closed-cycle cooling.
The closed-cycle systems would cost $3.5 billion a year and reduce the number of fish killed by up to 98 percent, he said. EPA says other technologies would cost a tenth as much and cut the number of fish killed by 80 percent to 95 percent, Scalia said.
The same EPA analysis also found that the most fish-friendly systems also would reduce the amount of electricity the plants generate. Utilities would have to build 20 new 400-megawatt power plants to replace the electricity, the EPA said.
Electricity costs could rise by 2.4 percent to 5.3 percent in that scenario, the agency said.
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