Justices back EPA in air-pollution case

U.S. agency has authority to overrule Alaska on emissions at zinc mine

January 22, 2004|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - The Supreme Court strengthened the power of federal anti-pollution regulators to enforce the Clean Air Act, ruling yesterday that they may overrule lax state officials and block new plants that would emit dirty air.

The 5-4 ruling is a victory for environmentalists, and it upholds a Clinton administration order that halted the construction of a large, new diesel generator at a huge zinc mine in northern Alaska.

"Today's decision is good news for the lungs of every American and shows that the federal government clearly has the authority to secure clean, safe air for all Americans," said Vickie Patton, a lawyer for Environmental Defense in Boulder, Colo.

She said the ruling gives federal regulators new clout to halt or slow the building of coal-fired power plants in the Rocky Mountain region.

Yet the court's action comes at an ironic moment.

Bush administration officials recently announced that they were pulling back on the enforcement of strict anti-pollution controls on power plants in the Midwest, and they are being sued by regulators in Eastern states who favor tough enforcement.

And, although the Supreme Court has affirmed the power of EPA officials to insist on strict enforcement, it does not require them to use that power.

"It highlights a paradox. On one hand, the Supreme Court is affirming the power of the Environmental Protection Agency to fight air pollution, but it comes at the same time the Bush administration is putting the brakes on the EPA," Patton said.

The Alaska case decided yesterday began six years ago. The Red Dog Mine in northwestern Alaska is the world's largest producer of zinc, and its operators planned to build a new diesel-fired generator to power its expansion.

The generator would have emitted up to 1,100 tons of nitrogen oxide a year.

The Clean Air Act says new facilities must use the "best available" technology to limit pollution. State regulators have a legal duty to enforce this requirement and to issue permits only to new plants that meet this standard.

One type of available technology would limit the emissions at the Red Dog Mine by 90 percent. A second, cheaper technology would reduce the pollution by 30 percent.

Alaskan authorities said the best technology would be too expensive for the operators, and they approved a cheaper and less effective alternative.

But the EPA refused to go along, and it ordered the plant to stop construction on the generator in February 2000.

The dispute turned into a classic clash between state rights and federal power.

First, Alaska challenged the EPA, but it lost in the 9th U.S. Circuit Court of Appeals in San Francisco. The liberal court sided with the environmentalists and upheld EPA's authority to overrule Alaska.

Otherwise, states could bow to "industry pressure" and allow new plants that belch pollutants across America, said Judge Kim Wardlaw, speaking for the 9th Circuit.

The Supreme Court, friendlier to states-rights claims, voted last year to hear an appeal from Alaska, which argued that the federal government was trying to "usurp" the state's authorities.

When the case reached the Supreme Court, the states were divided.

U.S. Solicitor General Theodore B. Olson, representing the Bush administration, defended the EPA's authority.

The Supreme Court ruled for the EPA and federal enforcement, with Justice Sandra Day O'Connor joining her more liberal colleagues to form the majority.

When Congress passed the Clean Air Act in 1970, it "endorsed an expansive surveillance role for the EPA," said Justice Ruth Bader Ginsburg in Alaska vs. EPA.

Ginsburg and O'Connor were joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

The dissenters, led by Justice Anthony M. Kennedy, faulted the majority for "relegating the states to the role of mere provinces, instead of coequal sovereigns."

The dispute over the new rules regulating power plants is before the U.S. Court of Appeals in Washington.

The Los Angeles Times is a Tribune Publishing newspaper.

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