Justices rule for federal government in clean air case
From Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- Setting limits on states rights, the Supreme Court Wednesday gave the federal government the power to impose more expensive pollution controls than Alaska wanted regarding power generation at an Alaskan mine.
In a 5-4 vote, the justices the ruled the Environmental Protection Agency had proper authority to block a state permit for a power plant that would have used cheaper, less effective, clean air technology.
At issue was a classic case over federalism, and the competing interests of Washington and local agencies over environmental protection.
"EPA can exercise its supervisory power to block a facility's construction," wrote Justice Ruth Bader Ginsburg, for the majority. "As EPA found, the Alaska department's own records showed there was scant, if any, evidentiary basis for choosing less stringent emission-reduction technology."
The case involved the Red Dog Mine, the world's largest source of zinc concentrate. Located above the Arctic Circle in remote northwest Alaska, the mine is the main economic force in the region. Teck Cominco Alaska Inc., commonly known simply as Cominco, sought to increase production with diesel-fired generators, which it used to produce its own electricity. The generators release nitrogen oxides, reactive gases that can contribute to a variety of environmental and medical problems.
The company applied with the state to add another generator, which would have added nitrogen oxide into the air. But Alaska and the Environmental Protection Agency disagreed on which type of "best available control technology" should be used on the new generator.
The federal Clean Air Act gives states the power to determine the best way to control pollution in areas that have met clean air standards. If the state fails to meet those standards, the federal government can step in.
 It's an implausible contention that states are immune from federal regulations when they fail in compliance with the [Clean Air] Act. 
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-- Deputy Solicitor Paul Clement
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"We fail to see why Congress, having expressly endorsed an expensive surveillance role for EPA," Ginsburg said, "would then implicitly preclude the agency from verifying substantive compliance."
Alaska officials complained that its day-to-day decisions on national environmental rules were improperly overridden by the EPA. They sued, claiming the federal agency's anti-pollution mandate would have been expensive. The state also argued it would have threatened the economic vitality of the region, populated mostly by native Inupiat Eskimos.
The federal government said the state's own data showed the newer pollution-cutting technology it approved should never have been used.
Jonathan Franklin, attorney for Alaska, told the justices this should be "strictly a state and local decision. The state review process is adequate to address" federal requirements and any violations, he said.
But the Bush administration argued the EPA has the power to enforce any violations. "It's an implausible contention that states are immune from federal regulations when they fail in compliance with the [Clean Air] Act," said Deputy Solicitor General Paul Clement.
Clement said the EPA would be rendered powerless to review and sanction if it could only "mouth the words" mandating compliance.
The justices last week heard arguments in two similar environmental cases over the extent clean air and water standards can be imposed on businesses and government. Those cases deal with smog in Southern California and pollution in the Florida Everglades. Rulings in the cases are expected over the next few months.
The ruling issued Wednesday is Alaska Dept. of Environmental Conservation v. EPA (02-0658).
