STEVENS, J., DISSENTING
ENTERGY CORP. V. RIVERKEEPER, INC.
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NOS. 07-588, 07-589 AND 07-597
ENTERGY CORPORATION, PETITIONER
07–588
v.
RIVERKEEPER, INC., et al.
PSEG FOSSIL LLC, et al.,
PETITIONERS
07–589
v.
RIVERKEEPER, INC., et al.
UTILITY WATER ACT GROUP, PETITIONER
07–597 v.
RIVERKEEPER, INC., et al.
on writs of certiorari to the united states
court of appeals for the second circuit
[April 1, 2009]
Justice Stevens, with
whom Justice Souter and Justice Ginsburg join, dissenting.
Section 316(b) of the Clean Water
Act (CWA), 33 U. S. C. §1326(b), which governs industrial
powerplant water intake structures, provides that the Environmental
Protection Agency (EPA or Agency) “shall require” that such
structures “reflect the best technology available for minimizing
adverse environmental impact.” The EPA has interpreted that mandate
to authorize the use of cost-benefit analysis in promulgating
regulations under §316(b). For instance, under the Agency’s
interpretation, technology that would otherwise qualify as the best
available need not be used if its costs are “significantly greater
than the benefits” of compliance. 40 CFR §125.94(a)(5)(ii)
(2008).
Like the Court of Appeals, I am convinced that
the EPA has misinterpreted the plain text of §316(b). Unless costs
are so high that the best technology is not “available,” Congress
has decided that they are outweighed by the benefits of minimizing
adverse environmental impact. Section 316(b) neither expressly nor
implicitly authorizes the EPA to use cost-benefit analysis when
setting regulatory standards; fairly read, it prohibits such
use.
I
As typically performed by the
EPA, cost-benefit analysis requires the Agency to first monetize
the costs and benefits of a regulation, balance the results, and
then choose the regulation with the greatest net benefits. The
process is particularly controversial in the environmental context
in which a regulation’s financial costs are often more obvious and
easier to quantify than its environmental benefits. And
cost-benefit analysis often, if not always, yields a result that
does not maximize environmental protection.
For instance, although the EPA
estimated that water intake structures kill 3.4 billion fish and
shellfish each year,[
Footnote
1] see 69 Fed. Reg. 41586, the Agency struggled to calculate
the value of the aquatic life that would be protected under its
§316(b) regulations,
id., at 41661. To compensate, the EPA
took a shortcut: Instead of monetizing all aquatic life, the Agency
counted only those species that are commercially or recreationally
harvested, a tiny slice (1.8 percent to be precise) of all impacted
fish and shellfish. This narrow focus in turn skewed the Agency’s
calculation of benefits. When the EPA attempted to value all
aquatic life, the benefits measured $735 million.[
Footnote 2] But when the EPA decided to give
zero value to the 98.2 percent of fish not commercially or
recreationally harvested, the benefits calculation dropped
dramatically—to $83 million.
Id., at 41666. The Agency
acknowledged that its failure to monetize the other 98.2 percent of
affected species “ ‘could result in serious misallocation of
resources,’ ”
id., at 41660, because its “comparison
of complete costs and incomplete benefits does not provide an
accurate picture of net benefits to society.”[
Footnote 3]
Because benefits can be more accurately
monetized in some industries than in others, Congress typically
decides whether it is appropriate for an agency to use cost-benefit
analysis in crafting regulations. Indeed, this Court has recognized
that “[w]hen Congress has intended that an agency engage in
cost-benefit analysis, it has clearly indicated such intent on the
face of the statute.”
American Textile Mfrs. Institute,
Inc. v.
Donovan,
452 U. S. 490, 510
(1981). Accordingly, we should not treat a provision’s silence as
an implicit source of cost-benefit authority, particularly when
such authority is elsewhere expressly granted and it has the
potential to fundamentally alter an agency’s approach to
regulation. Congress, we have noted, “does not alter the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions—it does not, one might say, hide elephants in
mouseholes.”
Whitman v.
American Trucking Assns.,
Inc.,
531 U. S.
457, 467–468 (2001).
When interpreting statutory silence in the
past, we have sought guidance from a statute’s other provisions.
Evidence that Congress confronted an issue in some parts of a
statute, while leaving it unaddressed in others, can demonstrate
that Congress meant its silence to be decisive. We concluded as
much in
American Trucking. In that case, the Court
reviewed the EPA’s claim that §109 of the Clean Air Act (CAA), 42
U. S. C. §7409(a) (2000 ed.), authorized the Agency to
consider implementation costs in setting ambient air quality
standards. We read §109, which was silent on the matter, to
prohibit Agency reliance on cost considerations. After examining
other provisions in which Congress had given the Agency authority
to consider costs, the Court “refused to find implicit in ambiguous
sections of the CAA an authorization to consider costs that has
elsewhere, and so often, been expressly granted.” 531 U. S., at
467. Studied silence, we thus concluded, can be as much a
prohibition as an explicit “no.”
Further motivating the Court in
American
Trucking was the fact that incorporating implementation costs
into the Agency’s calculus risked countermanding Congress’ decision
to protect public health. The cost of implementation, we said, “is
both so indirectly related to public health
and
so full of potential for canceling the conclusions drawn from
direct health effects that it would surely have been expressly
mentioned in [the text] had Congress meant it to be considered.”
Id., at 469.
American Trucking’s approach should
have guided the Court’s reading of §316(b). Nowhere in the text of
§316(b) does Congress explicitly authorize the use of cost-benefit
analysis as it does elsewhere in the CWA. And the use of
cost-benefit analysis, like the consideration of implementation
costs in
American Trucking, “pad[s]” §316(b)’s
environmental mandate with tangential economic efficiency concerns.
Id., at 468. Yet the majority fails to follow
American
Trucking despite that case’s obvious relevance to our
inquiry.
II
In 1972, Congress amended the CWA
to strike a careful balance between the country’s energy demands
and its desire to protect the environment. The Act required
industry to adopt increasingly advanced technology capable of
mitigating its detrimental environmental impact. Not all point
sources were subject to strict rules at once. Existing plants were
granted time to retrofit with the best technology while new plants
were required to incorporate such technology as a matter of design.
Although Congress realized that technology standards would
necessarily put some firms out of business, see
EPA v.
National Crushed Stone Assn.,
449 U. S. 64, 79 (1980),
the statute’s steady march was toward stricter rules and
potentially higher costs.
Section §316(b) was an integral
part of the statutory scheme. The provision instructs that “[a]ny
standard established pursuant to section 1311 of this title or
section 1316 of this title and applicable to a point source shall
require that the location, design, construction, and capacity of
cooling water intake structures reflect the
best technology
available for minimizing adverse environmental impact.” 33 U.
S. C. §1326(b) (2006 ed.) (emphasis added).[
Footnote 4] The “best technology available,” or
“BTA,” standard delivers a clear command: To minimize the adverse
environmental impact of water intake structures, the EPA must
require industry to adopt the best technology available.
Based largely on the observation that
§316(b)’s text offers little guidance and therefore delegates some
amount of gap-filling authority to the EPA, the Court concludes
that the Agency has discretion to rely on cost-benefit analysis.
See
ante, at 11–12. The Court assumes that, by not
specifying how the EPA is to determine BTA, Congress intended to
give considerable discretion to the EPA to decide how to proceed.
Silence, in the majority’s view, represents ambiguity and an
invitation for the Agency to decide for itself which factors should
govern its regulatory approach.
The appropriate analysis requires full
consideration of the CWA’s structure and legislative history to
determine whether Congress contemplated cost-benefit analysis and,
if so, under what circumstances it directed the EPA to utilize it.
This approach reveals that Congress granted the EPA authority to
use cost-benefit analysis in some contexts but not others, and that
Congress intend to control, not delegate, when cost-benefit
analysis should be used. See
Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837, 842–843
(1984).[
Footnote 5]
Powerful evidence of Congress’ decision not to
authorize cost-benefit analysis in the BTA standard lies in the
series of standards adopted to regulate the outflow, or effluent,
from industrial powerplants. Passed at the same time as the BTA
standard at issue here, the effluent limitation standards imposed
increasingly strict technology requirements on industry. In each
effluent limitation provision, Congress distinguished its
willingness to allow the EPA to consider costs from its willingness
to allow the Agency to conduct a cost-benefit analysis. And to the
extent Congress permitted cost-benefit analysis, its use was
intended to be temporary and exceptional.
The first tier of technology standards applied
to existing plants—facilities for which retrofitting would be
particularly costly. Congress required these plants to adopt
“effluent limitations … which shall require the application of the
best practicable control technology currently available.” 33 U.
S. C. §1311(b)(1)(A). Because this “best practicable,” or
“BPT,” standard was meant to ease industry’s transition to the new
technology-based regime, Congress gave BPT two unique features:
First, it would be temporary, remaining in effect only until July
1, 1983.[
Footnote 6] Second, it
specified that the EPA was to conduct a cost-benefit analysis in
setting BPT requirements by considering “the total cost of
application of technology in relation to the effluent reduction
benefits to be achieved from such application.”[
Footnote 7] §1314(b)(1)(B). Permitting
cost-benefit analysis in BPT gave the EPA the ability to cushion
the new technology requirement. For a limited time, a technology
with costs that exceeded its benefits would not be considered
“best.”
The second tier of technology standards
required existing powerplants to adopt the “best available
technology economically achievable” to advance “the national goal
of eliminating the discharge of all pollutants.” §1311(b)(2)(A). In
setting this “best available technology,” or “BAT,”[
Footnote 8] standard, Congress gave the EPA
a notably different command for deciding what technology would
qualify as “best”: The EPA was to consider, among other factors,
“the cost of achieving such effluent reduction,” but Congress did
not grant it authority to balance costs with the benefits of
stricter regulation. §1314(b)(2)(B). Indeed, in
Crushed
Stone this Court explained that the difference between BPT and
BAT was the existence of cost-benefit authority in the first and
the absence of that authority in the second. See 449 U. S., at 71
(“Similar directions are given the Administrator for determining
effluent reductions attainable from the BAT except that in
assessing BAT total cost is no longer to be considered in
comparison to effluent reduction benefits”).
The BAT standard’s legislative history
strongly supports the view that Congress purposefully withheld
cost-benefit authority for this tier of regulation. See
ibid., n. 10. The House of Representatives and the
Senate split over the role cost-benefit analysis would play in the
BAT provision. The House favored the tool, see H. R. Rep. No.
92–911, p. 107 (1972), 1 Leg. Hist. 794, while the Senate rejected
it, see 2
id., at 1183;
id., at 1132. The Senate
view ultimately prevailed in the final legislation, resulting in a
BAT standard that was “not subject to any test of cost in relation
to effluent reduction benefits or any form of cost/benefit
analysis.” 3 Legislative History of the Clean Water Act of 1977: A
Continuation of the Legislative History of the Federal Water
Pollution Control Act (Committee Print compiled for the Senate
Committee on Environment and Public Works by the Library of
Congress), Ser. No. 95–14, p. 427 (1978).
The third and strictest regulatory tier was
reserved for new point sources—facilities that could incorporate
technology improvements into their initial design. These new
facilities were required to adopt “the best available demonstrated
control technology,” or “BADT,” which Congress described as “a
standard … which reflect[s] the greatest degree of effluent
reduction.” §1316(a)(1). In administering BADT, Congress directed
the EPA to consider “the cost of achieving such effluent
reduction.” §1316(b)(1)(B). But because BADT was meant to be the
most stringent standard of all, Congress made no mention of
cost-benefit analysis. Again, the silence was intentional. The
House’s version of BADT originally contained an exemption for point
sources for which “the economic, social, and environmental costs
bear no reasonable relationship to the economic, social, and
environmental benefit to be obtained.” 1 Leg. Hist. 798. That this
exemption did not appear in the final legislation demonstrates that
Congress considered, and rejected, reliance on cost-benefit
analysis for BADT.
It is in this light that the BTA standard
regulating water intake structures must be viewed. The use of
cost-benefit analysis was a critical component of the CWA’s
structure and a key concern in the legislative process. We should
therefore conclude that Congress intended to forbid cost-benefit
analysis in one provision of the Act in which it was silent on the
matter when it expressly authorized its use in another.[
Footnote 9] See,
e.g.,
Allison Engine Co. v.
United States ex rel.
Sanders, 553 U. S. ___, ___ (2008) (slip op., at 7–8);
Russello v.
United States,
464 U. S. 16, 23 (1983)
(“[W]here Congress includes particular language in one section of a
statute but omits it in another … , it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion” (internal quotation marks omitted)). This
is particularly true given Congress’ decision that cost-benefit
analysis would play a temporary and exceptional role in the CWA to
help existing plants transition to the Act’s ambitious
environmental standards.[
Footnote 10] Allowing cost-benefit analysis in the BTA
standard, a permanent mandate applicable to all powerplants, serves
no such purpose and instead fundamentally weakens the provision’s
mandate.[
Footnote 11]
Accordingly, I would hold that the EPA is
without authority to perform cost-benefit analysis in setting BTA
standards. To the extent the EPA relied on cost-benefit analysis in
establishing its BTA regulations,[
Footnote 12] that action was contrary to law, for
Congress directly foreclosed such reliance in the statute
itself.[
Footnote 13]
Chevron, 467 U. S., at 843. Because we granted certiorari
to decide only whether the EPA has authority to conduct
cost-benefit analysis, there is no need to define the universe of
considerations upon which the EPA can properly rely in
administering the BTA standard. I would leave it to the Agency to
decide how to proceed in the first instance.
III
Because the Court unsettles the
scheme Congress established, I respectfully dissent.
Footnote 1
To produce energy, industrial powerplants
withdraw billions of gallons of water daily from our Nation’s
waterways. Thermo- electric powerplants alone demand 39 percent of
all freshwater withdrawn nationwide. See Dept. of Energy,
Addressing the Critical Link Between Fossil Energy and Water 2
(Oct. 2005), http://
www.netl.doe.gov/technologies/coalpower/ewr/pubs/NETL_Water_Paper_Final_Oct.2005.pdf
(all Internet materials as visited Mar. 18, 2009, and available in
Clerk of Court’s case file). The fish and shellfish are killed by
“impingement” or “entrainment.” Impingement occurs when aquatic
organisms are trapped against the screens and grills of water
intake structures. Entrainment occurs when these organisms are
drawn into the intake structures. See
Riverkeeper, Inc. v.
EPA, 475 F. 3d 83, 89 (CA2 2007); 69 Fed. Reg. 41586
(2004).
Footnote 2
EPA, Economic and Benefits Analysis for the
Proposed Section 316(b) Phase II Existing Facilities Rule, p. D1–4
(EPA–821–R–02–001, Feb. 2002),
http://www.epa.gov/waterscience/316b/phase2/econbenefits.
Footnote 3
EPA, Economic and Benefits Analysis for the
Final Section 316(b) Phase II Existing Facilities Rule, p. D1–5
(EPA–821–R–04–005, Feb. 2004),
http://www.epa.gov/waterscience/316b/phase2/econbenefits/final.
htm.
Footnote 4
The two cross-referenced provisions, §§1311
and 1316, also establish “best technology” standards, the first
applicable to existing point sources and the second to new
facilities. The reference to these provisions in §316(b) merely
requires any rule promulgated under those provisions, when applied
to a point source with a water intake structure, to incorporate
§316(b) standards.
Footnote 5
The majority announces at the outset that the
EPA’s reading of the BTA standard “governs if it is a reasonable
interpretation of the statute—not necessarily the only possible
interpretation, nor even the interpretation deemed
most
reasonable by the courts.”
Ante, at 7. This observation is
puzzling in light of the commonly understood practice that, as a
first step, we ask “whether Congress has directly spoken to the
precise question at issue.”
Chevron, 467 U. S., at 842.
Only later, if Congress’ intent is not clear, do we consider the
reasonableness of the agency’s action.
Id., at 843.
Assuming ambiguity and moving to the second step reflects the
Court’s reluctance to consider the possibility, which it later
laments is “more complex,”
ante, at 9, that Congress’
silence may have meant to foreclose cost-benefit analysis.
Footnote 6
Congress later extended the deadline to March
31, 1989.
Footnote 7
Senator Muskie, the Senate sponsor of the
legislation, described the cost-benefit analysis permitted under
BPT as decidedly narrow, asserting that “[t]he balancing test
between total cost and effluent reduction benefits is intended to
limit the application of technology only where the additional
degree of effluent reduction is wholly out of proportion to the
costs of achieving such marginal level of reduction for any class
or category of sources.” 1 Legislative History of the Water
Pollution Control Act Amendments of 1972 (Committee Print compiled
for the Senate Committee on Public Works by the Library of
Congress), Ser. No. 93–1, p. 170 (1973) (hereinafter Leg.
Hist.)
Footnote 8
Although the majority calls this “BATEA,” the
parties refer to the provision as “BAT,” and for simplicity, so
will I.
Footnote 9
The Court argues that, if silence in §316(b)
signals the prohibition of cost-benefit analysis, it must also
foreclose the consideration of
all other potentially
relevant discretionary factors in setting BTA standards.
Ante, at 12. This all-or-nothing reasoning rests on the
deeply flawed assumption that Congress treated cost-benefit
analysis as just one among many factors upon which the EPA could
potentially rely to establish BTA. Yet, as explained above, the
structure and legislative history of the CWA demonstrate that
Congress viewed cost-benefit analysis with special skepticism and
controlled its use accordingly. The Court’s assumption of
equivalence is thus plainly incorrect. Properly read, Congress’
silence in §316(b) forbids reliance on the cost-benefit tool but
does not foreclose reliance on all other considerations, such as a
determination whether a technology is so costly that it is not
“available” for industry to adopt.
Footnote 10
In 1977, Congress established an additional
technology-based standard, commonly referred to as “best
conventional pollutant control technology,” or “BCT,” to govern
conventional pollutants previously covered by the BAT standard. See
33 U. S. C. §1311(b)(2)(E). The BCT standard required the EPA
to consider, among other factors, “the relationship between the
costs of attaining a reduction in effluents and the effluent
reduction benefits derived.” §1314(b)(4)(B). That Congress
expressly authorized cost-benefit analysis in BCT further confirms
that Congress treated cost-benefit analysis as exceptional and
reserved for itself the authority to decide when it would be used
in the Act.
Footnote 11
The Court attempts to cabin its holding by
suggesting that a “rigorous form of cost-benefit analysis,” such as
the form “prescribed under the statute’s former BPT standard,” may
not be permitted for setting BTA regulations.
Ante, at 13.
Thus the Court has effectively instructed the Agency that it can
perform a cost-benefit analysis so long as it does not resemble the
kind of cost-benefit analysis Congress elsewhere authorized in the
CWA. The majority’s suggested limit on the Agency’s discretion can
only be read as a concession that cost-benefit analysis, as
typically performed, may be inconsistent with the BTA mandate.
Footnote 12
The “national performance standards” the EPA
adopted were shaped by economic efficiency concerns at the expense
of finding the technology that best minimizes adverse environmental
impact. In its final rulemaking, the Agency declined to require
industrial plants to adopt closed-cycle cooling technology, which
by recirculating cooling water requires less water to be withdrawn
and thus fewer aquatic organisms to be killed.
Riverkeeper,
Inc. v.
EPA, 358 F. 3d 174, 182, n. 5 (CA2
2004); 69 Fed. Reg. 41601, and n. 44. This the Agency decided
despite its acknowledgment that “closed-cycle, recirculating
cooling systems … can reduce mortality from impingement by up to 98
percent and entrainment by up to 98 percent.”
Id., at
41601. The EPA instead permitted individual plants to resort to a
“suite” of options so long as the method used reduced impingement
and entrainment by the more modest amount of 80 and 60 percent,
respectively. See 40 CFR §125.94(b). The Agency also permitted
individual plants to obtain a site-specific variance from the
national performance standards if they could prove (1) that
compliance costs would be “significantly greater than” those the
Agency considered when establishing the standards, or (2) that
compliance costs “would be significantly greater than the benefits
of complying with the applicable performance standards,”
§125.94(a)(5).
Footnote 13
Thus, the Agency’s past reliance on a “wholly
disproportionate” standard, a mild variant of cost-benefit
analysis, is irrelevant. See
ante, at 14. Because
“Congress has directly spoken to the precise question at issue,”
Chevron, 467 U. S., at 842, longstanding yet impermissible
agency practice cannot ripen into permissible agency practice.
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