Top Court Rules for EPA on Teck Alaskan Mine Permit

Top Court Rules for EPA on Alaskan Mine Permit

James Vicini, Reuters News Service

January 22, 2004

Washington - A divided U.S. Supreme Court ruled on Wednesday the federal government can overrule some state environmental decisions in a dispute involving an Alaskan zinc mine operated by Canada's Teck-Cominco Ltd.

The 5-4 decision said the Environmental Protection Agency can stop construction of a major pollutant-emitting facility permitted by a state authority when EPA finds the state's decision on pollution control technology was unreasonable.

The ruling was unusual because the court generally has expanded the powers of states at the expense of the federal government. Justice Sandra Day O'Connor, a key swing vote, joined the court's four liberals in ruling for the EPA.

Environmentalists hailed the decision. "This ruling prevents states from sacrificing clean air for the sake of big business," said Michael LeVine, a Juneau-based attorney for Earthjustice. Vickie Patton, a senior attorney at Environmental Defense, said the decision showed the federal government clearly has the power to protect public health by enforcing clean air laws. "Now the EPA must carry out these fundamental public health and environmental responsibilities, not weaken clean air enforcement as it recently announced," she said.

In 1999, Teck-Cominco, the world's largest zinc supplier, submitted a request to the Alaska Department of Environmental Conservation to build a diesel-fired generator at its Red Dog Mine located in northwest Alaska about 100 miles from the Arctic Circle.

The company wanted to increase zinc production by 40 percent. Besides building a new generator, it also wanted to use different, less-expensive technology on six existing generators to cut nitrogen oxide emissions.

The state agency granted the permit authorizing additional generator capacity, despite objections from the EPA.

Under the permit, emissions would be reduced by 30 percent. The state agency had initially suggested a technology that would reduce emissions from the new installation by 90 percent.

The EPA then issued three orders that effectively invalidated the air-quality construction permit. The state and the company sued, arguing the Clean Air Act did not authorize the EPA's action.

A U.S. appeals court upheld the EPA's authority to overrule permit decisions by the state, and concluded the EPA had legitimately exercised its authority in ordering the mine to stop construction. Justice Ruth Bader Ginsburg, in the majority opinion, agreed. She said EPA may issue a stop-construction order when a state's decision on the best available control technology was unreasonable.

"As EPA found, the Alaska department's own records showed there was scant, if any, evidentiary basis for choosing the less stringent emission-reduction technology," Ginsburg said in reading the decision from the bench.

She said EPA did not act arbitrarily or capriciously.

Ginsburg said the history of the clean air law suggests that without national guidelines, new plants will play one state off against another with threats to locate in the state that adopts the most permissive pollution controls.

Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, all big supporters of states' rights, dissented.

Kennedy wrote that the reasoning of the ruling conflicted with the "principles that preserve the integrity of states in our federal system."

"Federal agencies cannot consign states to the ministerial tasks of information gathering and making initial recommendations while reserving to themselves the authority to make final judgments under the guise of surveillance and oversight," he said.