- The Washington Times - Wednesday, January 21, 2004

ASSOCIATED PRESS

The Supreme Court ruled yesterday that the federal Environmental Protection Agency can override state officials and order some antipollution measures that may be more costly.

The 5-4 decision, a victory for environmentalists, found the EPA did not go too far when it overruled a decision by Alaska regulators, who wanted to let the operators of a zinc and lead mine use cheaper antipollution technology for power generation.

The four justices who dissented said the ruling undercut the states’ power to control their environmental policies.

The Alaska case was the first of eight environmental cases on the court’s docket this term, an unusually high number. The fight was over whether the Red Dog Mine must use equipment that would reduce pollution from a new generator by 90 percent. The state wanted to allow the mine operator, a major employer in a particularly rural area of Alaska, to use equipment that would reduce pollution by only 30 percent.

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

“We fail to see why Congress, having expressly endorsed an expansive surveillance role for EPA,” elsewhere in the law, “would then implicitly preclude the agency from verifying substantive compliance,” with the portion of the law at issue in this case, Justice Ruth Bader Ginsburg wrote for the majority.

Justice Ginsburg’s usual allies on the court’s ideological left — Justices John Paul Stevens, David H. Souter and Stephen G. 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 four dissenting justices based their decision on concerns that the ruling undercut the states’ power to control their environmental policies.

“This is a great step backward in Congress’ design to grant states a significant stake in developing and enforcing national environmental objectives,” wrote Justice Anthony M. Kennedy, joined by Chief Justice William H. Rehnquist, and Justices Antonin Scalia and Clarence Thomas.

“After today’s decision, however, a state agency can no longer represent itself as the real governing body. No matter how much time was spent in consultation and negotiations, a single federal administrator can in the end set all aside by a unilateral order,” Justice Kennedy wrote.


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