22 January 2004

The US Supreme Court decided yesterday, in a split 5-4 vote, the Environmental Protection Agency (EPA) can block construction of a polluting facility when it believes that the state regulator had not taken sufficient steps to control pollution. The ruling strengthens the power of the EPA, which can overrule states in issues pertaining to the Clean Air Act (CAA) enforcement.

The case against EPA was brought by Alaska, after the federal agency blocked construction of a power generating facility at the Red Dog Mine in Alaska, operated by Teck Cominco, the world’s largest producer of zinc. Alaska Department of Environmental Conservation (DEC) has issued a construction permit for the project, but the EPA blocked the construction on the grounds that—in violation of the CAA—“best available control technology” was not used to reduce NOx emissions.

While the significance and the main source of controversy around this ruling are related to the issue of authority of the federal government and the freedom of states in crafting their own environmental policy, the case, incidentally, was fought over emissions from diesel powered generators. The case began six years ago, when the operators of the Red Dog Mine, located in northwest Alaska about 100 miles from the Arctic Circle, decided to build a new diesel generator to power its expansion to increase zinc production by 40%. The new generator would emit up to 1,100 tons of nitrogen oxides per year. The case also involved the control of increased NOx emissions from six existing generators, which would increase their power output by relaxing certain operating restrictions.

In its final permit, the Alaska DEC agreed to use “Low NOx” controls—an emission control package that involved changes in the fuel injection (better fuel atomization) and combustion systems. The Low NOx controls resulted in a 30% NOx emission reduction. The EPA, on the other hand, insisted on the use of ammonia- or urea-based selective catalytic reduction (SCR)—a technology that would bring a 90% NOx emission reduction. The EPA issued orders effectively invalidating the state’s permit. In response the state and the company sued, claiming that under the CAA the EPA did not have such authority.

Implementing the SCR controls would cost the company an additional $10 million in extra investment cost and $1.5 million in annual operational costs, according to the state.

Court ruling
Press articles: Reuters | FT.com | NY Times