Entergy

Question 1

Clean Water Act Section 316(b)

Answer 1

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

Question 2

Environmental Impacts of Cooling Water Intake Structures

Answer 2

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

Question 3

Entergy v. Riverkeeper - Facts

Answer 3

• 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

Question 4

Entergy - 2nd Circuit

Answer 4

• 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

Question 5

Hidden Concern in Entergy

Answer 5

• “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

Question 6

Entergy - Holding

Answer 6

• 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

Question 7

Entergy - Concern Post-Decision

Answer 7

• 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

Question 8

Entergy - Stevens

Answer 8

• 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)