- The Washington Times - Thursday, April 2, 2009

The Supreme Court ruled Wednesday that federal environmental regulators can use cost-benefit analysis techniques when deciding how to upgrade equipment at power plants, a defeat for green groups who want the 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 require companies to spend hundreds of millions of dollars in system upgrades to meet what it claimed were Environmental Protection Agency regulations.

Older power plants, more than 500 in the U.S., pump cold water through their 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 in the 6-3 decision that the EPA is permitted to weigh cost when ordering electrical plants to upgrade their 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 ruling now kicks the ball to the Environmental Protection Agency, which will draft new rules for more than 500 of the nation’s aging power plants that use water cooling systems.

“I’m not sure it’s going to result in more dead fish,” said Reed Super, who has represented Riverkeeper in the case since 2004. “We are confident the EPA is going to issue a sensible rule that protects aquatic life.”

President Obama’s EPA has already done an about-face on many Bush administration policies, siding routinely with environmentalists - including reviewing California’s request to toughen auto-emission standards and establishing a greenhouse gas registry, which would be akin to a more sweeping climate-change plan.

The EPA declined to comment on the outcome of the case.

However, Entergy Corp. spokesman Alex Schott called the ruling a positive step, while noting that it “does not leave the nation’s waters without the substantial, and often very costly, protections of the Clean Water Act and parallel state programs - protections that Entergy takes very seriously.”

“Instead, the decision confirms that rational people, agencies, and courts all must count the costs of both environmental protection and of needed energy generation and must strike a rational balance,” Mr. Schott said.

In other decisions Wednesday, the court ruled 7-2 that poor inmates on death row have the right to use lawyers paid by federal tax dollars when seeking clemency. Edward Jerome Harbison, who was sentenced to death row 20 years ago in Tennessee for killing an elderly woman, maintains the police unjustly coerced him into making a confession by threatening to take away his children.

The court said Harbison’s case underscores why it is “entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.”

In a more closely divided 5-4 ruling, the court sided with labor contracts that require workers to first take bias and discrimination claims to arbitration before approaching the court system.

• Tom LoBianco contributed to this report

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