US Supreme Court Rules on Cost-Benefit Analysis

Hudson River fish may be beneficiaries of decision, but power plants may need to be pushed

WASHINGTON – Entergy Northeast, the company that owns and operates the Indian Point nuclear power plant in Buchanan, may consider cost-benefit analysis with reviewing technology at the plant.

The issue at hand was environmentalist organizations’ call for the plant to convert to a closed-cycle cooling system, which they maintain would draw far fewer fish into the system and reduce the fish kill by over 95 percent.

The Riverkeeper group fought for the closed cooling system. Hudson Riverkeeper and organization President Alex Matthiessen said they are pleased that the court “agreed that EPA is not required to use cost-benefit analysis and left it up to EPA on remand to decide to what extent, if any, cost benefit analysis should be used in regulating cooling water intake structures.”

Entergy spokesman Jerry Nappi said the high court decision prevents “unintended negative consequences on the environment and the economy” in these troubled times.

 “Forcing cooling towers on Indian Point could significantly raise electricity costs as well as add pollution to the air from any fossil burning power plants that would be need to replace Indian Point’s electricity,” he said.

A staunch supporter of Indian Point is New York AREA – the Affordable Reliable Electricity Alliance. Its president is Jerry Kremer.

“Businesses can’t afford to be forced to keep changing technology just because some group in the neighborhood doesn’t like it,” he said.

The court challenge was a national effort led by Riverkeeper and fought by many communities and waterkeepers across the county. “The ramifications for the Hudson River are quite important,” said Scott Edwards, legal director of Waterkeeper Alliance, “but the case has serious implications for nationwide efforts to develop new, less environmentally harmful production.”

Poughkeepsie Journal 

April 9, 2009

Power plants must be pushed on fish kills

Now that the nation's highest court has opened the way for aging power plants to avoid going to any great lengths to protect fish, Congress and the new president must have a clear say in the matter.

In a 6-3 ruling, the Supreme Court says the government can, indeed, weigh costs against benefits in deciding whether to order power plants to undertake expensive upgrades that would halt the devastating effects of their water-cooling systems.

Fine. But striking the proper balance has proven difficult over the years. Too often, regulators have allowed power plants to continue their harmful practices instead of forcing them to make substantial upgrades that would prevent the killing of billions of fish eggs and larvae from nearby waters.

In this case, the environmental group Riverkeeper took on Entergy Nuclear, owner of the Indian Point nuclear power plants on the Hudson River. Riverkeeper was hoping the Supreme Court would uphold a favorable ruling from a federal appeals court, which could have required more than 500 power plants to install much better technology to protect fish, period. Environmental groups want older power plants to be retrofitted with cooling towers that recycle water rather than continually withdraw it from rivers and, with it, fish life.

But, writing for the majority, Justice Antonin Scalia said even the appeals court and environmentalists "concede that some form of cost-benefit analysis is permitted" when considering these issues. In a dissent, Justice John Paul Stevens cited "powerful evidence" Congress did not want cost-benefit analysis to be used in determining the best available technology for reducing the number of fish killed.

Door left ajar for future EPA reviews

That should be easy enough for Congress to correct and clarify, if it has the will to do so. While disappointed in the ruling, Riverkeeper also points out the high court has done nothing to impede the Environmental Protection Agency under the Obama administration from proceeding with discretion as well.

"Closed cycle'' cooling is the industry standard when new power plants are built nowadays. Environmental groups have understandably argued that if older plants are going to operate well into the future (indeed, in some cases well beyond their original intent) regulators should demand upgrades that use the best technology available as well.

It's conceivable a balance can be found to reduce the number of fish kills using less expensive upgrades, and that, too, should be part of the debate. It's also clear the Obama administration and the emboldened Democratic majority in Congress will take a different view of these matters than the Bush administration.

In these new discussions, the environment, for a change, must not get short shrift