Blowing Off Steam: Cost-Benefit Analysis and the Clean Water Act

The Entergy case, which is now before the Supreme Court, involves EPA regulation of power plant’s cooling systems.  This is an important environmental issue because the cheapest systems kill acquatic life in the front-end intake process and then raise the temperature of water bodies in the back-end discharge.  More broadly, the case raises questions about whether EPA can reinterpret the Clean Water Act to convert the statute’s mandated technology-based standards into an open-ended cost-benefity analysis.  A group of law professors, including some contributors to the blog, have filed an amicus brief arguing that Congress made a clear and appropriate decision to use technology mandates and that the CWA does not contemplate the use of cost-benefit analysis instead.  The amicus brief is available here.

Observers say that the oral argument in the case did not go well for the environmental side.  If EPA does win, hopefully it will be on narrow grounds that don’t threaten the overall integrity of the statute.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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