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Wednesday, April 01, 2009

Environment - SCOTUS rules on use of cost-benefit analysis in at least some CWA applications

SCOTUSBlog reported earlier today:

The Court has released the opinion in Entergy Corp. v. EPA (07-588), on the Clean Water Act and the regulation of power plant cooling structures. The decision below, which held for the EPA, is reversed and remanded in a 6-3 opinion by Justice Scalia.
Now their crack reporter, Lyle Denniston, has posted an analysis piece on the opinion. Here is a sample:
Justice Antonin Scalia examined a provision of the Clean Water Act that controls industry structures for pulling plant-cooling water out of rivers and streams, and found that Congress had said nothing there about whether EPA could weigh costs against benefits and choose a lower-cost option. “It is eminently reasonable,” Scalia wrote, “to conclude that [that section’s] silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.”

If Congress’ silence meant prohibition, then federal agencies would not be able to take into account any considerations that Congress did not expressly leave to their discretion, Scalia said.

To Justice John Paul Stevens and two other dissenters, congressional silence — at least in this legislation — spoke more definitively. In the environmental field, the dissenters argued, “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and Congress intended “to control, not delegate, when cost-benefit analysis should be used.” Thus, under the Clean Water Act, silence on Capitol Hill did not mean “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”

[More] David Stout has now posted this story on the NY Times website.

Posted by Marcia Oddi on April 1, 2009 01:26 PM
Posted to Courts in general | Environment