I mentioned earlier that an important finding in Entergy v. Riverkeeper was that EPA can now decide when it will use cost-benefit analysis in environmental regulation (unless "categorically prohibited"), the standard to be applied to that analysis (strict or loose) and that it may change that standard without notice. I thought that the ruling was significant in that it put the power to use (and to quickly change the standard for) cost-benefit analysis firmly in the hands of the EPA Administrator, with all the political nuances therein. Fearing that mine might be a somewhat cynical take on the decision, I thought it might be a good idea to seek a second opinion -- what did the losers think of the ruling?
The New York Times reported that Alex Matthiessen, the president of Riverkeeper, said:
We are disappointed, of course, that the court did not affirm the lower court's judgment in it its entirety, but nonetheless pleased that the court agreed that EPA is not required to use cost-benefit analysis and left it up to EPA on remand to decide to what extent, if any, cost-benefit analysis should be used in regulating cooling water intake structures. 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.
Since EPA has not commented on the ruling, one might wonder why Mr. Matthiessen is so "confident." It is likely that it has something to do with the fact that Lisa Jackson has a new job. Ms. Jackson, formerly head of the New Jersey's Department of Environmental Protection, is now the Administrator of EPA. New Jersey was one of six states that joined in the Entergy case -- in support of Riverkeeper.
Ms. Jackson has excellent credentials and I have no doubt that she will be a great administrator of an Agency that is going to be very busy for four or more years. It must be helpful for her to know that on something as fundamental as the use of cost-benefit analysis, it's pretty much up to her as to when, and to what degree, it will be applied.
Sometimes it's funny how things work out.