In a ruling that could effect desalination plants in the USA, the US Supreme Court on 1 April 2009 overruled an appeals court decision and permitted the Environmental Protection Agency (EPA) to use cost/benefit criteria to determine the technology for powerplant water-cooling structures.
Without this ruling, developers would have been required to use best possible technology, regardless of cost, to minimize environmental impact.
The court upheld a rule by the EPA in 2004 that set requirements for intake structures at large existing facilities in an effort to protect fish, shellfish and other aquatic organisms from being harmed or killed. The EPA rejected stricter proposals, such as requiring plants to use closed-cycle cooling technology, which reuses withdrawn water and which would have cost more than US$ 3.5 billion a year.
The rule was challenged in court by environmental groups and by the states of Connecticut, Delaware, Massachusetts, New Jersey, New York and Rhode Island on the grounds it was not strict enough.
Writing for the court majority (6-3), Justice Antonin Scalia said the EPA permissibly relied on cost-benefit analysis in setting the national performance standards as part of the regulations. In his ruling, Scalia indirectly gave the green light to federal agencies in other fields to consider more cost-effective technology when weighing potential environmental damage, unless Congress definitively bars them from doing so:
“If silence here implies prohibition, then the EPA could not consider any factors in implementing §1326(b) — an obvious logical impossibility,” Scalia wrote. “It is eminently reasonable to conclude that §1326(b)’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.”
Environmental groups, however, say they hope that under the Obama administration, the EPA will shift policy and take a stricter view of what existing powerplants must do to reduce the impact on aquatic life from using ocean or river waters to cool the facilities.