Entergy Corporation v. Riverkeeprs, Inc.
Environmental Law, Administrative Law, Clean Water Act
This case involves regulation under the Clean Water Act (“CWA”) of the intake
structures used by power plants to take in cooling water. After 30 years of
regulating new facilities, the Environmental Protection Agency (“EPA”) promulgated
a regulation requiring existing cooling water intake structures to be retrofitted to
comply with EPA’s latest determination of the “best technology available for
minimizing adverse environmental impact,” measured in terms of the potential
effects on early life stages of fish. The Second Circuit, deferring to EPA, held that
EPA has authority to retrofit existing facilities. Siding with environmental petitioners
and against EPA, the court also held that EPA’s weighing of costs and benefits is
limited to a narrow “cost-effectiveness” test. The questions presented, all of which
implicate splits in circuit court authority, are:
1. Whether the CWA provides EPA authority to impose new requirements under
Section 316(b) of the Act, 33 U.S.C. § 1326(b), with respect to existing cooling
water intake structures?
2. Whether a court should accord Chevron deference to an agency’s interpretation
of its own statutory jurisdiction?
3. Whether Sections 301 and 316(b) of the CWA, 33 U.S.C. § 1301, 1326(b), limit
EPA’s weighing of costs and benefits only to the Second Circuit’s “cost
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