BRATTLEBORO REFORMER , Brattleboro, Vermont

Supreme Court decision could delay Yankee relicensing

By BOB AUDETTE, Reformer Staff

Saturday, April 4

BRATTLEBORO — A U.S. Supreme Court decision rendered on April 1 could delay the relicensing of Vermont Yankee nuclear power plant. But then again, the decision might not affect the relicensing at all.

"We are sort of in limbo, not knowing what the rules are going to be," said Catherine Gjessing, legal counsel for Vermont’s Agency of Natural Resources.

"It will probably cause further delay," said Pat Parenteau, a former director of Vermont Law School’s Environmental Law Center and of the Environmental and Natural Resources Law Clinic.

In 2004, The Environmental Protection Agency established national regulations for existing power plants requiring cost-benefit analyses of upgrades made to cooling systems to reduce their impact on aquatic life.

The EPA’s regulations were challenged by a suit filed by Riverkeeper, an environmental group dedicated to protecting the Hudson River. Along with six states, Riverkeeper contended that the 2004 regulations set weak standards and allowed power plants to seek variances to the "best technology available" clause in the Clean Water Act.

The U.S. Court of Appeals struck down the regulations, and ruled that the clause prohibits EPA from comparing costs to benefits and requires EPA to mandate use of the technology whose costs can reasonably be borne by industry.

But several energy companies, including Entergy, appealed the decision to the Supreme Court, which concluded that such an analysis is not required under the Clean Water Act, though the EPA has the authority to ask for one. The court remanded the matter to the EPA.

"The outcome of the case is not necessarily bad news," said David Deen, river steward for the Connecticut River Watershed Council, who said a new EPA under the Obama Administration may respond differently from the EPA under the Bush Administration.

"I hope this EPA will be a very different one than the one that came up with this goofy idea of cost/benefit."

"The EPA is free to make a brand new decision," said Parenteau, adding it could take EPA quite a while to make its decision, especially if it’s in opposition to the previous administration’s decision.

Entergy wants the EPA to apply cost-benefit analyses to both its fossil-fuel plants and its nuclear plants, said Chuck Barlow, assistant counsel general for Entergy Corporation, which owns and operates Vermont Yankee and Indian Point.

It boils down to the phrase "wholly disproportionate," he said.

"You can make the cost matter too much," said Barlow. "And it should be applied in a rational way. Many times you can’t put a dollar figure on environmental protection."

The Supreme Court’s decision affects more than 500 power plants. Those plants supply more than half of the nation’s electricity and use more than 200 billion gallons of water each day for cooling. In the process, fish and other aquatic life are killed, either by being crushed against intake screens or by being drawn into the cooling system itself.

The question the Supreme Court looked at was whether the "best technology available" caveat in the Clean Water Act included a cost-benefit analysis.

The Bush EPA made a decision that the EPA estimate the costs of instituting the best technology available versus the value of the aquatic life itself. In the case of Entergy’s Indian Point, on the Hudson river, the EPA concluded that the aquatic life was not worth $1.4 billion, the capital cost for upgrades.

The Supreme Court’s decision was a blow for Riverkeeper.

"We are disappointed that the Court did not affirm the lower court’s judgment in its entirety," stated Alex Matthiessen, president of Riverkeeper, in a press release commenting on the decision. Nonetheless, he said, "We are looking forward to working with EPA’s new administrator, whom we are confident will agree that the Bush EPA regulations failed to satisfy the Clean Water Act’s mandate that the adverse environmental impacts of cooling water intake structures be minimized."

David Deen said the case before the Supreme Court is not the same as the case decided by the Vermont Environmental Court, which is under appeal at the Vermont Supreme Court.

"Our case is not based on a cost-benefit analysis," he said "It’s based on the actual impact of thermal discharge on the river."

Late last year, the environmental court allowed Entergy’s requested 1 degree increase in its thermal discharge. But it also required additional river monitoring below the dam and added limits on how hot the water can get during the time that shad are in the river.

Both Entergy and the watershed council are appealing the environmental court’s decision. The watershed council believes the court’s decision was too lenient while Entergy believes it was too strict.

Bob Audette can be reached at raudette@reformer.com, or 802-254-2311, ext. 273 .