[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Tuesday in two cases. In Entergy Corp. v. EPA [oral arguments transcript, PDF], the Court heard arguments on whether Section 316(b) of the Clean Water Act [text, PDF] authorizes the Environmental Protection Agency (EPA) [official website] to use a cost-benefit analysis to determine what is the best technology available for minimizing adverse environmental impact from cooling water intake structures that draw water into power plants to offset the heat created during power generation. This case consolidates issues in two cases – PSEG Fossil v. Riverkeeper (07-589) [docket], and Utility Water Act Group v. Riverkeeper (07-597) [docket]. The US Court of Appeals for the Second Circuit [official website] ruled [text, PDF] that no such balancing test may be used and that companies must adopt the best technology available. Counsel for the petitioners argued that the circuit court decision unlawfully limits EPA authority and that a cost-benefit analysis is required. Counsel for the respondents argued that the "EPA never has the authority, in any context, to weigh costs against benefits" and that no "absurd circumstances" would result from such a ruling.

In Fitzgerald v. Barnstable School Committee [oral arguments transcript, PDF], the Court heard arguments on whether Title IX [text] precludes Section 1983 [text] constitutional claims to remedy sex discrimination in educational settings. The US Court of Appeals for the First Circuit [official website] found [opinion, PDF] that parents could not sue for discrimination against their daughter by another student under Section 1983 and that Title IX provided the only remedy. Counsel for the petitioners argued that "the court of appeals entirely disregarded all of the ordinary indicia of congressional intent: The statutory text, the statutory background structure and evolution, the unquestioned legislative purpose" in finding that Title IX precluded a remedy under Section 1983. Counsel for the respondent argued that "Title IX provides for sex discrimination and provides a remedy for sex discrimination in a broader category of circumstances than the Equal Protection Clause," so petitioners are not denied a remedy.