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Sam Heldman


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Friday, October 03, 2003
Cases for Wednesday, Oct. 8:

No. 02-658 Alaska DEC v. EPA

So there’s a company called Cominco that mines zinc above the Arctic Circle. Several generators power the mine. Cominco decided that the mine was not producing zinc fast enough, and so needed more power. The company wanted to increase the production of one of the generators and add a new generator.

Unfortunately for Cominco, Alaska is a clean air zone (or something like that) under the Clean Air Act. That means that the company must get a permit before it increases the amount of pollutants it’s putting into the air. The Alaska DEC issues such permits under authority delegated by the Clean Air Act. In order to get a permit, a company has to show that it has emission controls in place that are the “best available control technology” (“BACT”) for limiting pollutants.

In this case, the company wanted to use “Low NOx” technology as the BACT for its upgraded and new generators. Alaska said that Selective Catalytic Reduction (“SCR”) was in fact BACT. So the company offered to upgrade all six of its generators to Low NOx,” which would mean that it was putting out no more pollutants than it is now. This was okay with Alaska, but the EPA stepped in. The EPA thought that Alaska can’t just go around switching willy nilly what is BACT and what isn’t. Eventually, EPA issued a finding of noncompliance, invalidating Alaska’s permit.

The question here is whether EPA was allowed to do that. I think they are, and that the court will AFFIRM. This is mainly because the Clean Air Act pretty specifically says:

    Whenever, on the basis of any available information,
    the Administrator finds that a State is not acting in
    compliance with any requirement or prohibition of
    the chapter relating to the construction of new
    sources or the modification of existing sources, the
    Administrator may—
      (A) issue an order prohibiting the construction
      or modification of any major stationary
      source in any area to which such
      requirement applies;

42 U.S.C. § 7413(a)(5). That pretty much does it for me, except for my standard disclaimer that since this is the 9th Circuit, and I’m predicting AFFIRM, I will probably be wrong.

No. 02-7498 Raytheon v. Hernandez

This case has three strikes against it. First, the decision below came from the Ninth Circuit. Second, it was written by Judge Reinhardt, who, although a fine jurist, has an unfortunate record with the Supremes, or at least he has an unfortunate reputation for having an unfortunate record, which will suffice for purposes of this prediction. Third, it appears to say that under the ADA, employers cannot refuse to rehire applicants who were fired for drug use, but are later rehabilitated. I predict the Court will REVERSE.