U.S. Supreme Court Allows Performance-Based Standards in EPA Case

 U.S. Supreme Court Allows Performance-Based Standards in EPA Case

By Roger Owers, Ph.D., P.E., J.D.

Cyrus sat down across the small café table from his lawyer, Angie.  “Good morning, Cyrus,” Angie said.  “Did you hear about the recent case from the U.S. Supreme Court regarding the Environmental Protection Agency?”

“You mean the case discussing the EPA’s rule regarding power plant cooling systems?”  Cyrus replied.

“Yes,” said Angie.  On the surface, it sounds like a narrow issue, but I think it will impact your civil engineering work.”

“Really?  In what regard?”  Cyrus asked as he took a bite of his coffee crumb cake.

“An environmental group challenged an EPA rule aimed at protecting fish and other aquatic organisms from being sucked into or pressed against screens for underwater intake systems used to water-cool existing power plants,” Angie started.

“Instead of requiring existing power plants to use the ‘best technology available’ (as the EPA requires for new power plants), the rule used a performance-based standard for reducing those negative effects on aquatic organisms.”

“I assume that the EPA was concerned with the cost impacts on power companies if they were required to retrofit their existing power plants up to the standard of ‘best technology available?’”  Cyrus asked.

“Exactly, Cyrus,” said Angie.  “And the U.S. Supreme Court appreciated the EPA’s concern for those cost-benefit effects when the EPA issued the rule.  The Court upheld the EPA rule, allowing the performance-based standard and not forcing the EPA to require the ‘best technology available’ standard.”

“I get it,” Cyrus replied.  After another bite of his crumb cake he asked, “But this certainly is a narrow issue.  How do you think it will impact my civil engineering work?”

“It may not affect you immediately, but I see two big upshots from this opinion,” Angie replied.  “First, this opinion enables the EPA to use its discretion in rulemaking.  The EPA does not necessarily have to require project owners to implement costly measures.  The EPA can weigh costs and benefits in making future rules on a variety of environmental issues.”

Cyrus responded, “But in some cases, the EPA’s discretion could just as easily go against project owners, couldn’t it?”

“Yes indeed, Cyrus.  The EPA’s discretion in rule-making could certainly cut both ways.”

“The second impact from this opinion is that the U.S. Supreme Court underscored the ability of the EPA to implement a performance-based approach in rule making.”

Cyrus replied.  “I myself have noticed a trend in performance-based projects coming out of some project owners.  For example, best-value procurement, value-based proposals, etc.  I like these projects because they allow me to showcase my talents and the value I bring to the project.”

“Well,” said Angie, “this U.S. Supreme Court opinion certainly doesn’t hurt the project owners who want to implement performance-based projects.”

“I’m glad to hear that, Angie.”

Cyrus finished his coffee crumb cake, looked at Angie and said, “I can’t think of a better topic for conversation while enjoying my coffee crumb cake than saving fish from getting sucked into power plant cooling systems.”

“Would you rather talk about the law?”

The U.S. Supreme Court opinion referred to in this article is Entergy Corp. v. Riverkeeper, Inc., et al., 556 U.S. ___ , (2009).


Roger S. Owers is a commercial real estate professional with Keyser LLC and is a lawyer with the Kaibab Law Offices of Roger S. Owers LLC.  Roger holds a Ph.D. in civil engineering, is a registered professional civil engineer, holds a real estate license, and is a licensed attorney.  He can be reached via e-mail at rowers@kaibabllc.com or www.kaibabllc.com.  He can also be found on LinkedIn at http://www.linkedin.com/in/rogerowers/.


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