Court urged to choose power plants over fish

updated 1:50 p.m. ET Dec. 2, 2008

WASHINGTON - The Bush administration asked the Supreme Court on Tuesday to let the nation's older power plants draw in billions of gallons of water for cooling without installing technology that would best protect fish and aquatic organisms.

Lawyers for the government and electricity producers urged the justices to overturn a lower court ruling that says the Clean Water Act does not allow the government to pit the cost of upgrading an estimated 554 power plants against the benefits of protecting fish and aquatic organisms when limiting water use.

They argued that for the last 30 years the Environmental Protection Agency has weighed the costs of controlling power plant withdrawals from rivers, streams and other waterways against the benefits of saving more aquatic wildlife in setting technology requirements.

The law already allows such cost-benefit analyses to be performed when facilities discharge pollutants into waterways that could affect human health, the attorneys said.

"There is no reason Congress would want greater protection for fish from intake structures than for people through the discharge of pollutants," said Deputy Solicitor General Daryl Joseffer.

Environmentalists want the decision upheld.

Richard Lazarus, an attorney representing environmental groups, told the court that the "EPA has no authority in any circumstance to decide that fish aren't worth a certain amount of cost."

The outcome could determine whether existing power plants need to make costly upgrades to reduce the number of fish and aquatic organisms trapped in their cooling systems.

The nation's power plants use billions of gallons of water from rivers and other waterways each year to cool their facilities. But the flow of water can smash fish against grills and screens and smaller aquatic organisms can get sucked into the system itself.

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