Supreme Court Upholds Power Plant Cooling Water Rule

Thermoelectric Power Plants such as this one, consume massive amounts of water in the production of energy. Photo courtesy of
Author: Bevan Griffiths-Sattenspiel

In a potential setback for environmental groups seeking to reduce the impacts of thermoelectric power production on our rivers, lakes and streams, the U.S. Supreme court handed a victory to the Bush-era EPA, along with Entergy Corp. and other companies operating power plants by ruling that a cost-benefit analysis can dictate what technologies are considered the "best available" for minimizing environmental harm.

Taking into account the costs and benefits of a retrofit might not seem like such a big deal, but when you consider that the affected facilities each withdraw over 50 million gallons of water per day and that thermoelectric power generation accounts for 39% of all freshwater withdrawals in the U.S., river and watershed groups need every tool available to minimize the environmental damage inflicted by power plants.

This whole saga began in 2004 when the EPA set rules for minimizing the environmental impacts of thermoelectric power (coal, nuclear, natural gas, petroleum) production. In order to understand the issue, you first need to know how "once-through" cooling works.

Many power plants in the U.S. use once-through cooling, which means that massive amounts of water are withdrawn from a nearby source, cycled through once (hence the name) to cool the towers, then disposed back into the natural environment at a higher temperature and often with contaminants picked up in the cooling towers. Once-through systems typically have massive intake structures that can trap fish and other wildlife, as well as smaller aquatic organisms. Alternatives in the form of "dry" and "closed-loop" cooling can drastically reduce the amount of water withdrawn, however they often incur greater costs to the utility.

While the EPA did adopt standards in 2004 that decrease the likelihood of aquatic organisms getting trapped in intake structures, many environmental groups and a handful of states (Connecticut, Delaware, New Jersey, New York, Massachusetts and Rhode Island) sued the government to enforce tougher standards that would require power plants to use the best technology available. The guidelines impact 550 facilities--or about 40 percent of the country's energy production--the implications for the power sector and the environment are very significant.

Section 316(b) of the Clean Water Act, requires, "that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." The states and environmental groups were arguing that the best technology should be used regardless of cost, however, the Supreme Court does not agree. As Justice Antonin Scalia wrote in the majority opinion, "The phrase 'best technology available,' even with the added specification 'for minimizing adverse environmental impact,' does not unambiguously preclude cost-benefit analysis."

Fear not! The NYT reports that the ruling is not so bad after all, especially since the Obama Administration EPA is much friendlier to environmental groups (Lisa Jackson, the new head of the EPA, lead the environmental agency in New Jersey, one of the states involved in the suite). Even with the ruling, the EPA still has the authority to enforce tougher standards. The NYT contacted a couple familiar names in the river community for their opinions on the case. According to Riverkeeper's president Alex Matthiessen:

"We are disappointed, of course, that the court did not affirm the lower court's judgment in its entirety, but nonetheless 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," said Alex Matthiessen, president of the New York-based environmental group Riverkeeper, which brought the lawsuit.

"We are looking forward to working with EPA's new administrator, whom we are confident will agree that the Bush EPA regulations failed to satisfy the Clean Water Act's mandate that the adverse environmental impacts of cooling water intake structures be minimized."

Nancy Stoner from the NRDC also weighed in:

"Regardless of whether or not the Supreme Court says power plants are allowed to continue with this wasteful and unnecessary process, the EPA has the authority to require better water use," said Nancy Stoner, co-director of the Natural Resources Defense Council's water program. "EPA should do the right thing and call on power plants to use the smart water technology available to them."