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Entergy Nuclear Generation Co. v. Department of Environmental Protection

ELR Citation: 41 ELR 20150
Nos. No. SJC-10732, (Mass., 04/11/2011)

Massachusetts' highest court vacated a nuclear power company's action seeking a judgment declaring that state regulations governing cooling water intake structures (CWIS) exceeded the state environmental agency's authority under the commonwealth's Clean Waters Act. A lower court ruled that the regulations, as applied to the CWIS at issue in this case, were ultra vires and beyond the agency's authority to adopt. But the Act authorizes the agency to regulate cooling water intake structures when it is reasonably necessary to protect water resources. It is true that the Act emphasizes, as the primary mechanism for achieving water quality, the management of water pollution in the traditional sense. But the Act's emphasis on traditional threats to water resources cannot be read to deprive the agency of authority to address atypical or novel threats that may also harm those resources. Accordingly, the absence of references to CWISs or water withdrawals in the Act is not material. Here, the agency has concluded that regulation of CWISs may be necessary to perform its duties under the Act. Nothing in the record would suggest that that determination is unreasonable. The ecological harms associated with CWISs are well understood--the intake of water by a CWIS at a single power plant can kill or injure billions of aquatic organisms in a single year. Accordingly, authority to regulate CWISs reasonably may be implied as necessary to protect water quality in the commonwealth, and the CWIS regulations at issue here, which implement that authority, are not ultra vires.