Supreme Court Rules EPA Can Block State Clean Air Permits

By J.R. Pegg

WASHINGTON, DC, January 22, 2004 (ENS) - The U.S. Supreme Court ruled Wednesday that the federal government has the authority to override decisions by state officials that afford less environmental protection than mandated by the Clean Air Act.

By a 5 to 4 margin the court upheld a lower court ruling that found the U.S. Environmental Protection Agency (EPA) followed the law when it blocked construction at an Alaskan zinc mine because of concerns about the laxness of state pollution control permits.

The case centered on the Red Dog Mine, which is located in northwest Alaska some 100 miles north of the Arctic Circle and five miles from the Noatak National Preserve.

The open pit mine is owned and operated by the Canadian firm Teck Cominico Ltd - it has a yearly production capacity of more than 600,000 tons of zinc.

In 1999, the Alaska Department of Environmental Conservation granted the company a pre-construction permit allowing it to add another large diesel generator to its operation.

The company estimated the additional generator would have increased the mine's production by some 40 percent and its nitrogen oxide emissions by some 40 tons per year.

The Red Dog Mine is the largest zinc mine in the world and an important economic engine in a remote part of Alaska. (Photo courtesy Alaska Industrial Development and Export Authority)

Although state officials determined BACT capable of reducing emissions by some 90 percent was feasible and affordable, its permit required pollution controls only one third as effective.

This prompted the EPA to issue an enforcement action to revoke the state's permit and block construction of the new generator.

The state and the company challenged the decision and questioned whether the Clean Air Act grants the EPA such authority.

According to the majority, the law "confers that checking authority on EPA."

The EPA's order was "neither arbitrary nor capricious," Justice Ruth Bader Ginsburg wrote in the majority opinion.

The law gives the EPA "supervisory authority over the reasonableness" of BACT determinations by state permitting authorities, Ginsburg wrote, and the agency "may issue a stop construction order ... if a BACT selection is not reasonable."

In a familiar pattern of recent Supreme Court decisions, Justice Sandra Day O'Connor joined Ginsburg along with Justices John Paul Stevens, David Souter and Stephen Breyer to forge a narrow majority.

The 5 to 4 ruling split the court along ideological lines, with Justice Sandra Day O'Conner joining the more liberal justices to form a majority. (Photo courtesy U.S. Department of Justice)

"After today's decision ... a state agency can no longer represent itself as the real governing body," Kennedy wrote on behalf of the minority. "No matter how much time was spent in consultation and negotiation, a single federal administrator can in the end set all aside by a unilateral order."

"This is a great step backwards in Congress' design to grant States a significant stake in developing and enforcing national environmental objectives," according to the dissenting justices.

Environmentalists hailed the decision and called on the Bush administration to ensure the EPA carries out its obligations under the Clean Air Act.

"Today's decision is good news for the lungs of every American and shows that the federal government has an obligation to secure clean, safe air for all Americans," said Vicki Patton, a senior attorney with Environmental Defense.

Environmentalists feared a decision in favor of Alaska would allow states to put in place weak pollution controls for new power plants and industrial sources, even though more cost effective and more stringent pollution control technology may be available.

The ruling upholds a decision by the 9th Circuit Court of Appeals decision that upheld a ruling in favor of the EPA. Some 11 states filed in support of Alaska's view, but at least 14 filed in opposition.