WASHINGTON _ The federal Clean Air Act requires new factories and power plants to use the "best available control technology" to limit air pollution, but generally lets states determine what specific systems satisfy the law.

The Environmental Protection Agency (EPA) stepped in, however, when the State of Alaska decided to allow a major mining operation to install a pollution control system for a new power plant that would be one-third as effective as a more expensive technology.

Alaska cried foul and challenged the EPA’s move to require the more expensive pollution controls all the way to the U.S. Supreme Court. But in a closely divided decision issued January 21, the usually states rights-minded high court sided with the feds and upheld EPA’s authority to override state environmental regulators.

Environmentalists hailed the court’s decision in Alaska Department of Environmental Conservation v. Environmental Protection Agency as a breath of fresh air. The ruling "shows that the federal government has an obligation to secure clean, safe air for all Americans," said Vickie Patton, a Colorado-based attorney with Environmental Defense, which filed a friend-of-the-court brief on the EPA’s side.

Alaska officials and industry groups countered that the decision misread the law, mistreated the states, and threatened construction of vitally needed new power plants. "There’s a need for certainty in the permitting process," said Paul Seby, a lawyer with the Center for Energy and Economic Development in Denver, an industry coalition. "For 30 years, it’s been understood that the state agencies were the ones that made the decisions."

The ruling may have limited impact under the current EPA, which has retreated on pollution enforcement since President Bush took office. In California, the decision is seen as having little immediate effect because the state air pollution controls are tougher than the federal regulations.
The dispute began in 1996 when the operators of the Red Dog zinc mine, the world’s largest, sought a permit to build a new diesel power generating plant in order to increase production by 40%. The facility, located in northwest Alaska 100 miles north of the Arctic Circle, is the region’s largest employer, with 360 full-time workers.

Teck Cominco Alaska, the company that operates the mine, applied to the Alaska Department of Environmental Conservation for a permit for the new power plant under the Clean Air Act’s "prevention of significant deterioration" or PSD provisions. In areas where air quality standards are already met — called attainment areas — major new pollution sources are required to use "best available control technology" or BACT.

The law defines BACT to be "an emission limitation based on the maximum degree of [pollutant] reduction" that is "determined by the permitting authority" to be "achievable" taking into account "energy, environmental, and economic impacts and other costs." States with approved pollution control plans are authorized to administer the permit process, but the act gives EPA authority to prevent construction of new facilities that do not conform to the law.

The Alaska agency in March 1999 proposed that Cominco install a technology known as "selective catalytic reduction" or SCR that reduces nitrogen oxide (NOx) emissions by about 90% through a chemical process. Cominco responded by proposing an alternative control technology known as Low NOx that reduces nitrogen oxide emissions by about 30% through more complete burning of fuel. With the public comment period still open, the agency reversed itself in May 1999 and recommended the Low NOx system favored by the company.

Prodded by the National Park Service, which administers the nearby Noatak Nature Preserve, the EPA objected to the state agency’s position. After several months of back and forth, the state granted a construction permit on December 10, 1999. The EPA issued an order blocking the permit the same day. The state went to the Ninth U.S. Circuit Court of Appeals, claiming EPA could block its decisions only through state courts. When the appeals court ruled against Alaska’s position, the state took the case to the Supreme Court.

The high court also sided with the EPA, dividing 5-4 along mostly conservative-liberal lines. For the majority, Justice Ruth Bader Ginsburg said EPA "has supervisory authority over the reasonableness of state permitting authorities’ BACT determinations and may issue a stop construction order . . . if a BACT selection is not reasonable." On the specific issue, Ginsburg said EPA had acted reasonably in deciding that the state agency "lacked evidentiary support" for approving the Low NOx system rather than SCR for the new power plant.

Ginsburg was joined by her three liberal colleagues — John Paul Stevens, David H. Souter, and Stephen G. Breyer — and by Justice Sandra Day O’Connor, frequently the swing vote on the court. Four conservatives dissented: Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Writing for the dissenters, Kennedy said, "EPA’s distrust of state agencies is inconsistent with the Act’s clear mandate that States bear the primary role in controlling pollution and, here, the exclusive role in making BACT determinations."

States split on the issue before the high court: 11 sided with Alaska, while 13 — including California — backed the EPA.

"We were pleased," Gavin McCabe, a deputy state attorney general in San Francisco, said of the high court’s ruling. "It’s important for federal environmental law to set the floor but not the ceiling." McCabe said California’s air quality agencies typically would require the more expensive SCR technology in situations comparable to Alaska’s.

McCabe and Environmental Defense’s Patton both said EPA has rarely second-guessed state agencies’ decisions in the past. "It is only in the most unusual and compelling of circumstances when EPA has had to step in," Patton said.

But Reed Hopper, an attorney with the conservative Pacific Legal Foundation in Sacramento, said the decision places companies seeking to build new factories or power-generating plants in a bind. "No matter how much time or effort they have spent in negotiation with the state, they know that the EPA at any time can invalidate that permit by means of a unilateral order," Hopper said.

Ironically, the dispute no longer matters for the Red Dog mine. Cominco decided last year to install the SCR technology rather than wait for the end of the case.

Vickie Patton, Environmental Defense, Boulder, Colorado, (303) 440-4901.
Paul Seby, Center for Energy and Economic Development, Denver, (303) 571-1400.
Gavin McCabe, California Attorney General’s Office, (415) 703-5605.
Reed Hopper, Pacific Legal Foundation, (916) 362-2833.

Kenneth Jost, a former editor of the Los Angeles Daily Journal, is editor of The Supreme Court A to Z (CQ Press).