High court ruling aids power plants

Says costs can be considered in protecting fish

By Mark Sherman
Associated Press / April 2, 2009
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WASHINGTON - The Supreme Court ruled yesterday that the government can weigh costs against benefits in deciding whether to order power plants to undertake environmental upgrades that would protect fish.

The court's 6-3 decision is a defeat for environmentalists who had urged the justices to uphold a favorable federal appeals court ruling that could have required an estimated 554 power plants to install technology that relies on recycled water to cool machinery.

By reducing water intake, the closed-cycle cooling also results in fewer fish being sucked into the system or smashed to death against screens. The Environmental Protection Agency estimates water-intake systems at power plants kill 3.4 billion fish and shellfish each year.

The ruling, written by Justice Antonin Scalia, was a victory for the power industry, which has long advocated for the use of cost-benefit analysis on environmental issues. The utilities were backed by the Bush administration.

It is unclear whether the EPA in the Obama administration will chart a similar course or decide not to use cost-benefit analyses when they yield less environmental protection. EPA administrator Lisa Jackson previously directed the New Jersey environmental protection agency. New Jersey was one of several states that challenged the EPA regulations that the court approved yesterday.

EPA spokeswoman Adora Andy said the agency would have no comment on the ruling.

But Reed Super, a lawyer for the Riverkeeper Inc. environmental group, said the court made clear that EPA has discretion in how to proceed. "We have all the confidence in the world that the Obama administration will do the right thing," Super said.