Justices Give EPA Clout to Enforce Clean Air Rules

The U.S. Supreme Court on Wednesday strengthened the power of federal antipollution regulators to enforce the Clean Air Act, ruling that they could 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 construction of a large 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 new coal-fired power plants in the Rocky Mountain region.

The court’s action comes at an ironic moment. Bush administration officials recently announced that they were pulling back on enforcement of strict antipollution 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 decision is likely to have limited impact in California, because the state’s air-quality regulators tend to enforce the law strictly.

Last week, the high court heard arguments in a clean air dispute from the Los Angeles area that represents the flip side of the coin.

Four years ago, the South Coast Air Quality Management District adopted a rule that requires new buyers of buses, garbage trucks and airport shuttles to choose clean-burning engines. The makers of diesel engines challenged the regional rule as going too far and violating the national standards set by the Clean Air Act. Bush administration lawyers joined the case on the side of industry.

A ruling on that issue can be expected in several months.

The Alaska case decided Wednesday 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 diesel-fired generator to power its expansion. The generator would emit 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 the requirement and to issue permits only to new plants that meet the standard.

One type of available technology would limit the emissions at the Red Dog Mine by 90%. A second, cheaper technology would reduce the pollution by 30%. 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 clash between state rights and federal power.

Alaska challenged the EPA but lost in the U.S. 9th Circuit Court of Appeals in San Francisco. The liberal court sided with environmentalists and upheld the 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, decided last year to hear an appeal from Alaska, which argued that the federal government was trying to “usurp” the state’s authority.

U.S. Solicitor Gen. 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. Lawyers for the Eastern states, led by New York Atty. Gen. Eliot Spitzer, have sued to block the administration’s proposed changes in the regulatory rules.

The court that will decide the case has a new Bush appointee, Judge John G. Roberts Jr. In the fall, while his nomination was pending in the Senate, he represented Alaska in the Supreme Court in its battle against the EPA.