Entergy Flashcards
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”
2
Q
Environmental Impacts of Cooling Water Intake Structures
A
- impingement
- entrainment
- existing plants cause death of more than 3.4 billion fish/shellfish
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
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
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
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
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
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)