Author: Ben Lieberman
Published by: The Heartland Institute
Published in: Environment News
Publication date: March 2004
In an ongoing fight between states and the federal government over control of environmental policy, the federal government has notched an important victory in the U.S. Supreme Court.
On January 21, the Court narrowly ruled in favor of the Environmental Protection Agency (EPA) in its dispute with the state of Alaska over a mine permit. The consequences of the decision for other state/federal environmental controversies remain unclear.
Alaska Department of Environmental Conservation v. Environmental Protection Agency involved the Red Dog Mine, a large zinc mine located in northwest Alaska. Because of the mine’s remote location, it runs its own electric generators, and thus is subject to Clean Air Act (CAA) requirements for power plant emissions.
Several years ago, the mine decided to expand operations and needed to add generation capacity. That triggered the CAA’s requirement that major modifications at industrial facilities obtain a permit and install Best Available Control Technology (BACT).
Under the CAA, the state permitting authority--in this case the Alaska Department of Environmental Conservation (ADEC)--runs the permit program and decides what type of pollution controls must be installed in order to comply with BACT. Here, the mine owners and ADEC worked out the details of the permit, and the mine commenced its expansion project.
EPA the Ultimate Authority
But in an unusual move, EPA subsequently stepped in and declared the agreed-upon permit terms too lenient. EPA demanded the mine install more stringent, and more costly, emissions controls to meet the BACT requirements. ADEC challenged the right of EPA to second-guess them in this manner. The U.S. Court of Appeals for the Ninth Circuit ruled against the state agency.
ADEC appealed to the Supreme Court, where the case was argued last October. The majority opinion, written by Justice Ruth Bader Ginsburg and joined by John Paul Stevens, Sandra Day O’Connor, David Souter, and Stephen Breyer, affirmed the lower court decision and upheld EPA’s action.
The majority noted the CAA gives EPA ultimate oversight of the state-level permit program. It thus argued EPA has authority to overrule “a state agency’s unreasonably lax BACT designation.”
The Court concluded, “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.” In other words, EPA decides what is and is not reasonable and thus has the last word on CAA permits.
Policy Rationale
Though the decision rested on the Court’s interpretation of the CAA language, it also discussed the policy rationale for federal control over state decisions. The majority cited concerns, expressed by Congress, of a so-called race-to-the-bottom in which states unhindered by federal oversight would compete for industry by lowering environmental standards. Congress also had warned that states have no accountability for pollution that drifts into other states, thus any downwind states would be helpless victims of imported pollution absent federal intervention.
The majority failed to apply those policy arguments to the facts and circumstances at issue, however. Mines, of course, must be located where there are materials to be mined, thus the race-to-the-bottom argument has little relevance. And since the Red Dog Mine is located well within Alaska’s interior, more than a thousand miles away from the closest state, the interstate pollution argument would also seem irrelevant.
A four-member dissent, written by Justice Anthony Kennedy and joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, strongly disagreed with the majority opinion. It stated the decision allowing EPA to second-guess ADEC’s judgment on permit details “conflicts with the express language of the CAA, with sound rules of administrative law, and with principles that preserve the integrity of states in our federal system.”
The state of Alaska, the dissent argues, had in place a permit program that was in full compliance with the law, thus EPA had no authority to step in and micromanage it. It also pointed out EPA never asserted ADEC’s less-stringent permit terms would have resulted in a violation of any clean air standard.
With regard to what it deemed “EPA’s distrust of state agencies,” the dissent asserted such distrust 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.” In its view of Congressional intent, the dissent concluded, “Congress made the overriding judgment that states are more responsive to local conditions and can strike the right balance between preserving environmental quality and advancing competing objectives.”
Implications
At the very least, EPA’s victory in ADEC v. EPA means that, in similar CAA permitting disputes between state and federal officials, the latter have the final say. The majority couched its decision in fairly narrow terms and focused on the statutory language and legislative history of the CAA, suggesting it may not apply to similar disputes involving other environmental laws.
Nevertheless, the dissent warned that “under the majority’s reasoning, these other statutes, too, could be said to confer on federal agencies ultimate decisionmaking authority, relegating states to the role of mere provinces or political corporations, instead of coequal sovereigns entitled to the same dignity and respect.”
Other such disputes are currently in the courts, so it will soon become apparent whether this decision shifts the balance of environmental power further towards the federal government.
Ben Lieberman is director of air quality policy with the Competitive Enterprise Institute, in Washington, DC. His email address is blieberman@cei.org.
For more information ...
The syllabus and majority and dissenting opinions in Alaska Department of Environmental Conservation v. Environmental Protection Agency are available through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for documents #14403 (syllabus), #14404 (majority opinion), and #14406 (dissenting opinion).
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