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Supreme Court favors EPA in clean air case

Courts' ruling departs from growing trend of granting state governments more power

Posted: Thursday, January 22, 2004

WASHINGTON - Federal regulators can trump more permissive state officials in some disputes over costly measures to limit air pollution, the Supreme Court said Wednesday.

The ruling departed from the court's trend toward granting state governments more power.

Alaska Gov. Frank Murkowski wanted to allow the Red Dog Mine near Kotzebue, the world's largest zinc mine, to use cheaper, less effective anti-pollution equipment, but the federal Environmental Protection Agency said no.

The Supreme Court's 5-4 ruling upholds the EPA's veto power in such cases.

"This ruling prevents states from sacrificing clean air for the sake of big business," said Michael LeVine, an attorney in Juneau for Earthjustice. "It is an important victory for all Americans because it protects clean air not only in Alaska, but also in other states that feel the effects of air pollution."

Together with attorneys from other environmental organizations, LeVine submitted a friend of the court brief that supported the EPA's efforts.

The victory for environmentalists may be more symbolic than substantive. The portion of the Clean Air Act at issue has not been front and center in court fights over pollution, and the court majority kept its ruling narrow.

The Clean Air Act allows state officials to make some decisions involving facilities within their borders, but still gives the EPA wide authority to enforce the anti-pollution law passed by Congress in 1970.

In this case, Congress gave the EPA power to override unreasonable state decisions, Justice Ruth Bader Ginsburg wrote for the majority.

"This close decision deals a blow to the authority delegated to states by Congress in the Clean Air Act." said Alaska Attorney General Gregg Renkes in a prepared statement.

"Alaska sought and gained primary responsibility for the air permitting program to provide a predictable and stable regulatory environment," said Ernesta Ballard, Commissioner of the Department of Environmental Conservation, in a prepared statement. "This case and its outcome have the potential to significantly disrupt that environment. The burden is on the state to assure that this does not happen."

The case seemed a setback for the cause of state sovereignty, a subject that has produced a series of 5-4 rulings expanding state control at the expense of the federal government, and which has provoked deep disagreement between the high court's more liberal and conservative wings.

The four justices who dissented in the clean air decision said the ruling undercuts states' ability to control their own environmental policies and threatens to give the federal government too much muscle in other areas.

"The (Clean Air Act) is not the only statute that relies on a close and equal partnership between federal and state authorities to accomplish congressional objectives," Justice Anthony M. Kennedy wrote for himself, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

"Under the majority's reasoning, these other statutes, too, could be said to confer on federal agencies ultimate decision-making authority, relegating states to the role of mere provinces or political corporations, instead of coequal sovereigns entitled to the same dignity and respect."

Ginsburg's usual allies on the court's ideological left - Justices John Paul Stevens, David H. Souter and Stephen Breyer - joined her in the ruling. The crucial fifth vote came from Justice Sandra Day O'Connor, who usually votes with the court conservatives in states' rights cases.

The Alaska case was over whether the Red Dog Mine must use equipment that would reduce emissions from a new diesel generator by 90 percent. The state wanted to allow the mine operator, a major employer in the remote Northwest Arctic, to use equipment that would reduce pollution by 30 percent.

The EPA insisted on a newer "selective catalytic reduction" technology for the new generator. The agency did not require that technology for the mine's older generators.

The state went to court, and the San Francisco-based 9th U.S. Circuit Court of Appeals sided with the EPA.

Complying with the ruling would cost the mine operators an additional $10 million upfront and an additional $1.5 million annually, the state said.



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