Entergy Flashcards

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1
Q

Clean Water Act Section 316(b)

A
  • sets the standard for cooling water intake structures
  • standards need to reflect “best technology available for minimizing adverse environmental impact”
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2
Q

Environmental Impacts of Cooling Water Intake Structures

A
  • impingement
  • entrainment
  • existing plants cause death of more than 3.4 billion fish/shellfish
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3
Q

Entergy v. Riverkeeper - Facts

A
  • EPA had previously required closed-loop cooling water intake structures for new plants in phase 1 of its regs but pass-through for existing in phase 2
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4
Q

Entergy - 2nd Circuit

A
  • basically, says EPA can’t consider cost-benefit for this standard and it did so here -> arbitrary and capricious
  • Faulted EPA Rejection Closed Cycle Cooling Because Could Have Been Based on Impermissible Cost-Benefit Analysis
  • Faulted EPA’s Allowance for Site-Specific Cost-Benefit Compliance Variance Option
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5
Q

Hidden Concern in Entergy

A
  • “best” is located all over CWA - if court construed that to mean cost-benefit, it could require cost-benefit for a whole bunch of other standards
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6
Q

Entergy - Holding

A
  • EPA’s interpretation reasonable
  • plain meaning doesn’t preclude cost-benefit analysis (best has different meanings, could be most efficiently produces some good, and minimize admits of degree)
  • agency not required to perform CBA, but that doesnt mean it isn’t permitted to do so
  • Breyer - says the statute doesn’t forbid cost-benefit analysis
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7
Q

Entergy - Concern Post-Decision

A
  • the dicta Prof Lazarus didn’t want got in there
  • the SCOTUS opinion says it’s NOT clear BATEA and BADT preclude cost-benefit analysis -> this was a major issue for environmentalists because it had pretty much been thought resolved that these provisions did not allow for cost-benefit analysis
    -> distinction between cost feasibility and cost-benefit analysis - can consider costs, but can’t compare them to benefits
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8
Q

Entergy - Stevens

A
  • dissent
  • plain meaning - unless costs so high that the tech isn’t available, they’re outweighed by benefit of minimizing env impact (Congress has already done the cost-ben in setting out the statute)
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