Brief of Environmental Law Professors as Amici Curiae in Support of Respondents

Abstract

This is an amicus brief written by Professors Jim May (Widener) and Jared Goldstein (Roger Williams) on behalf of law professors in support of Respondent Riverkeeper, in a case before the U.S. Supreme Court, Entergy v. EPA, PSEG Fossil v. Riverkeeper, and Utility Water Group v. Riverkeeper, _ U.S. _, Nos. 07-588, 07-589 and 07-597, respectively. While the certified question seems improbably simple, Whether section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the best technology available for minimizing adverse environmental impact at existing cooling water intake structures, what is at stake is much more complex and sweeping. The outcome of this case could have profoundly negative effects not only on the environmental concerns 316(b) was designed to protect, but also on the technology-based undergirding of the CWA and the rest of Environmental Law. This amicus brief examines the relevant language, structure and history of the CWA, including the role of costs in setting technology-based standards. The history of water pollution regulation before 1972 demonstrates that Congress wisely chose to meet water quality standards by adopting performance-based standards based on technological capabilities rather than balancing costs and benefits based on water quality impacts. Experience under the Clean Water Act vindicates Congress's choice: the technology-based standards adopted under the Clean Water Act have produced significant environmental benefits without causing economic disruption or absurd results.