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It Depends What The Meaning Of "best" Is

The Supreme Court yesterday agreed to hear a case that asks whether the Clean Water Act requires power plants and manufacturers to adopt the best available technology, regardless of cost, for eliminating pollution from wastewater used to absorb heat from industrial processes, or whether companies are allowed to use a cost-benefit calculation in deciding whether to adopt these technologies. The Bush administration is siding with--you guessed it!--industry:

Proposing rules for large existing power plants in 2004, the Environmental Protection Agency gave the industry a range of options for meeting “national performance standards.” It also provided that on a plant-by-plant basis, operators could request a variance on the ground that the cost of complying was significantly greater than the environmental benefits of compliance.

Ruling in a lawsuit brought by environmental groups, the United States Court of Appeals for the Second Circuit, in Manhattan, held that the statute barred the agency from engaging in cost-benefit analysis of the type it had proposed. The only way that cost could be taken into account, the court said, was to permit a plant operator to use “a less expensive technology that achieves essentially the same results” as the “best” technology.

Nice to see that Stephen Johnson's EPA keeps living up (down?) to expectations. I actually tend to be of the opinion that this is the type of regulation where a cost-benefit approach is called for, but for better or worse the language of the statute seems pretty clear: "Any standard established pursuant to section 301 or section 306 of this Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." That's what the Second Circuit found in its opinion (pdf), but we'll see what the Supreme Court says. The case likely won't be decided until spring 2009, which, as the Times article notes, could create an interesting dynamic if the next administration takes a different view than the current one.

--Josh Patashnik