Fish protections at dams subject to cost analysis

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.

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

Reed Super, a lawyer for environmental group Riverkeeper Inc., 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. Justices Ruth Bader Ginsburg and David Souter also dissented.

All new power plants must use closed-cycle cooling.

But the regulations at issue in the Supreme Court case apply only to older facilities.

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.

The closed-cycle systems would cost $3.5 billion a year and reduce the number of fish killed by up to 98 percent, he said. EPA says other technologies would cost a tenth as much and cut the number of fish killed by 80 percent to 95 percent, Scalia said.

The same EPA analysis also found that the most fish-friendly systems would reduce the amount of electricity the plants generate. Utilities would have to build 20 new 400-megawatt power plants to replace the electricity, the EPA said.

Electricity costs could rise by 2.4 percent to 5.3 percent in that scenario, the agency said.

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 on the side of the environmental groups. “It is inevitably understated.”

Indeed, the EPA’s analysis valued the annual benefit in fish saved at $83 million, but that number takes account only of the value of fish that end up on dinner plates or sport fishing hooks – about 2 percent of all the fish killed. The agency assigned no value to more than 98 percent of the aquatic life killed each year.