- The Washington Times - Wednesday, April 1, 2009

The Supreme Court ruled Wednesday that federal environmental regulators can use cost-benefit analysis when deciding how to upgrade equipment at power plants, a defeat for green groups who want impact on the environment to be the chief or only consideration.

The 6-3 ruling strikes down a victory for the Riverkeepers environmental group, which had persuaded the 2nd U.S. Circuit Court of Appeals that cost should not matter in its bid to force companies to spend hundreds of millions of dollars in system upgrades to meet what it claimed were Environmental Protection Agency (EPA) regulations.

Older power plants, of which there are more than 500 in the United States, pump cold water through their own systems to prevent the plant from overheating, but environmentalists say the aging structures suck in and kill aquatic organisms.

Justice Antonin Scalia wrote for the majority that the EPA is permitted to weigh cost when ordering electrical plants to upgrade the cooling systems.

“While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years,” Justice Scalia wrote.

In his dissent, Justice Stephen G. Breyer said he agreed with the court that the “relevant statutory language authorizes the EPA to compare costs and benefits.”

“Nonetheless, the drafting history and legislative history of related provisions … make clear that those who sponsored the legislation intended the law’s text to be read as restricting, though not forbidding, the use of cost-benefit comparisons,” Justice Breyer said.

The cases are Entergy Corp. v. Riverkeepers Inc., et al.; PSEG Fossil LLC, et al. v. Riverkeepers Inc., et al.; and the Utility Water Act Group v. Riverkeepers Inc., et al.

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