MICHELE NORRIS, host:
From NPR News, this is All Things Considered. I'm Michele Norris. Today, the Supreme Court heard arguments in an important environmental case. The question is whether power plants must use the best technology available to minimize environmental harm to the nation's waterways. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The nation's older power plants sucked in trillions of gallons of water each year from this country's lakes and rivers to cool the steam for generating power. In the process, the fish and aquatic organisms in that water are killed. In contrast, modern plants use technologies that require little or no water at all. The Clean Water Act requires utilities to use the best technology available to minimize environmental harm.
So the question in this case is whether and when the older plants have to install new technology to do that. The Bush administration adopted a new regulation that, in essence, gives the older plants a pass on new technology if they can show that the costs of modernizing outweigh the benefits.
Six states challenged that regulation, contending that such a cost-benefit analysis is simply not permitted under the act. They won in the lower courts. Today in the Supreme Court, the Bush administration's Assistant solicitor general, Daryl Joseffer, told the justices that the Clean Water Act provision dealing with water intake is ambiguous.
Chief Justice Roberts - in the other provisions of the law, Congress specified consideration of cost and benefits, and it didn't do so in this provision.
Justice Suter - I just don't see how a sight-driven cost-benefit analysis works because you're dealing with immeasurables. Are a thousand plankton worth a million dollars? I don't know.
Justice Keansburg - Everybody agrees that some consideration of cost is appropriate if the technology is more than the industry can bear. The concern is, are you comparing things that aren't comparable?
Justice Kennedy - I assumed the best-technology standard in the statue is the most rigorous. So what's your regulation that reflects that?
Answer - there's no reason Congress would want greater protection for fish through the intake provision than is provided for people in the pollutant discharge provision of the law, which does allow cost-benefit analysis.
Justice Stevens - so you don't think Congress intended a tougher standard?
Answer - we do not.
Justice Kennedy - then why didn't Congress use any of the lesser standards, like the best practicable standard?
Mr. Joseffer never really answered that question. Representing the states and environmental groups today was Georgetown law professor Richard Lazarus. He told the justices that Congress decided it didn't want a cost-benefit analysis to apply to water intake because such an analysis had simply proven too hard and too subject to endless delay.
Instead, he contended Congress meant the standard to be whether the technology is feasible, meaning affordable, but he got his legal feet tangled in trying to explain the difference between considering feasible costs as opposed to weighing costs and benefits. Justice Alito suggested that the plain meaning of the words in the statute, best available technology, provides no consideration of cost.
Justice Breyer - are you saying pay no attention to cost? Or can you take cost into account if it's grossly disproportionate?
Answer - you can take cost into account to prevent insane results, but you cannot weigh the cost against the environmental benefit because if you do that, Congress knew the fish always lose.
Justice Suter - are you saying the question should be whether there's money in the bank to pay for this?
Answer - absolutely.
Chief Justice Roberts with a touch of irony - well, if a standard is affordability and money in the bank, the standard changes because nobody has money in the bank today. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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