While the Bush administration opposed Supreme Court review of appeals filed by industry groups, Solicitor General Paul D. Clement notified the court that if the justices did decide to hear the case, the administration would side with the industry challengers.
In its brief, the administration told the justices that the federal appeals court that barred the Environmental Protection Agency from adopting the cost-benefit approach erred “by purporting to micromanage the agency’s decision making.”
Given the number of cases the Supreme Court has already accepted for argument next fall, this case is unlikely to be argued before December, with a decision unlikely before March or April of next year. Consequently, if a Democrat wins the White House in November, the court and the country could well see a reprise of the drama that played out in the early days of the administration of President Ronald Reagan.
Taking office in January 1981 with a vigorous antiregulatory agenda, the Reagan administration inherited a set of Supreme Court positions that it did not want to support. In one pending case, on standards for workplace exposure to cotton dust, the cause of “brown lung” disease among textile workers, the new administration wanted to use a cost-benefit analysis, the opposite of the position that the administration of President Jimmy Carter had just finished arguing to the Supreme Court.
The Reagan administration’s lawyers asked the court for permission to withdraw the government’s brief. Instead, in American Textile Manufacturers Institute v. Donovan, the court handed the administration a stinging rebuke by ruling that the statute at issue, the Occupational Safety and Health Act, made worker safety a “pre-eminent value” and did not permit a cost-benefit analysis.
The court’s new case, Entergy Corporation v. Environmental Protection Agency, No. 07-588, concerns a provision of the Clean Water Act that applies to the use by power plants and manufacturing facilities of “cooling water,” water drawn from rivers or lakes and used to absorb heat generated by the industrial process. Both the intake of the water and its outflow have environmental consequences for aquatic organisms. Section 316 of the act provides that the design of structures used for cooling water must “reflect the best technology available for minimizing adverse environmental impact.”
Proposing rules for large existing power plants in 2004, the Environmental Protection Agency gave the industry a range of options for meeting “national performance standards.” It also provided that on a plant-by-plant basis, operators could request a variance on the ground that the cost of complying was significantly greater than the environmental benefits of compliance.
Ruling in a lawsuit brought by environmental groups, the United States Court of Appeals for the Second Circuit, in Manhattan, held that the statute barred the agency from engaging in cost-benefit analysis of the type it had proposed. The only way that cost could be taken into account, the court said, was to permit a plant operator to use “a less expensive technology that achieves essentially the same results” as the “best” technology. Finding that it was unclear exactly how the agency had considered cost, the appeals court sent the regulation back to it for reconsideration.
The administration told the Supreme Court that the appeals court had addressed a question of “great significance” and had reached a “wrong” result. The appeals court engaged in “freelancing,” Solicitor General Clement’s brief said, by “usurping the agency’s role of construing and filling in an ambiguous statute.”
The brief went on to explain that the administration had decided not to appeal the ruling because “the full impact of the decision will not be clear until E.P.A. completes proceedings on remand.” However, Mr. Clement added, the administration would support the industry view and defend the regulation if the court decided to hear the case.
That leaves a coalition of environmental groups, led by Riverkeeper Inc., to defend the appeals court’s judgment when the case is argued in the Supreme Court’s next term.