WASHINGTON — The Supreme Court ruled Wednesday 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.
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.
The high court decision overruled the 2nd U.S. Circuit Court of Appeals in New York. The appeals court said the Clean Water Act does not allow cost to be used when deciding what technology would best minimize environmental impacts.
But Scalia said even the appeals court and environmentalists “concede that some form of cost-benefit analysis is permitted.”
In dissent, Justice John Paul Stevens cited “powerful evidence” that Congress did not want cost-benefit analyses to be used in determining the best available technology for reducing the number of fish killed.
But Scalia said there is nothing wrong with EPA regulations that allow the use of less costly systems that come close to achieving the same environmental benefits as closed-cycle cooling.
Among the problems environmental groups have with cost- benefit calculations is the difficulty of valuing the benefits.
“Trying to put a dollar figure on fish and aquatic systems gets very difficult and contentious,” said Amy Sinden, a Temple University law professor who wrote a brief in the case for the environmental groups.
Supreme Court rulings
Other court action Wednesday:
• The court ruled for employers who want to force unionized workers to pursue their age discrimination claims through arbitration instead of a federal lawsuit. The court, in a 5-4 decision, said an arbitration agreement negotiated between an employer and a union that strips them of their option to take complaints to court is binding on workers. The dissenting justices said the high court in the past ruled that unions cannot bargain away employees’ federal forum rights in discrimination cases.
• The court said the federal government should pay federally appointed lawyers for working on state clemency requests for death row inmates. The 6th U.S. Circuit Court of Appeals in Cincinnati had said that the law does not allow federal public defenders to be paid for working on state clemency requests. The high court disagreed and reversed that decision on a 7-2 vote.
