The New York Times

Below are two May 4 articles addressing the Supreme Court's decision to let stand an appeals court ruling that New Source Review could not be enforced in the manner chosen by the EPA.

The Atlanta Journal-Constitution (Atlanta, GA), May 4, 2004 pA7

TVA WINS APPEAL VS. EPA \ CLEANUP ORDERS CAN BE IGNORED. (News) Charles Seabrook.

Byline: CHARLES SEABROOK; Staff

The U.S. Supreme Court on Tuesday rejected a government request to consider whether the federally owned Tennessee Valley Authority can disregard a demand from Washington to clean up its coal-fired power plants.

The Department of Justice had asked the court to weigh in on TVA's contention that the U.S. Environmental Protection Agency had overstepped its authority in demanding the TVA cleanup.

But the court, without comment, refused to hear the argument.

In essence, that means that the TVA can ignore EPA's cleanup orders without risking penalties --- unless EPA sues the agency in court and wins.

"This is an important victory for TVA and the electric utility industry," said Scott Segal, director of the Electric Reliability Coordinating Council, which represents several firms, including the Atlanta-based Southern Co.

The ruling also means that the justices declined to use EPA's appeal to clarify how conflicts between two executive branch agencies should be handled.

The Justice Department, representing EPA, appealed to the Supreme Court after a federal appeals court in Atlanta ruled last summer that, in order for the environmental agency to prevail over TVA, it must sue the public utility in a U.S. District Court. Until then, the appeals court said that TVA is free to ignore EPA orders to clean up its coal-burning power plants.

Complying would cost TVA hundreds of millions of dollars to install pollution-control equipment.

Power plants are major sources of pollutants like sulfur dioxide, which can cause acid rain and particle pollution, and nitrogen oxides, which can produce ozone, or smog.

Smog can trigger asthma attacks and, according to some studies, may cause the disease itself. Harvard University scientists said in a new study last week that poor and minority children are likely to develop asthma at worsening rates because of global warming and air pollution.

EPA in 1999 charged that TVA made major improvements at seven of its aging coal-burning plants but did not install required pollution controls as mandated by the Clean Air Act's "new source review." EPA did not sue TVA, contending that it might not be possible for one federal agency to sue another, using instead an administrative order.

The case was closely watched by environmentalists and other utilities.

Environmentalists hoped a ruling against TVA would strengthen EPA's similar cases against other utilities in the South and Midwest, including the Southern Co. "The question at this point is whether the Department of Justice will refile the case against TVA in a federal district court," said Frank O'Donnell, head of the Clean Air Trust based in Washington.

The EPA and Justice Department on Monday were mum on their plans. TVA had no comment. Segal said the decision "should bring EPA's actions against TVA to a close." He also said that the court's ruling, with one last month in a case against Duke Energy in North Carolina, weakens pending cases against the Southern Co. and other utilities. In the Duke Energy case, EPA asked a federal judge to dismiss its suit because the agency couldn't prove its claims against the utility.

In other action Monday, the Supreme Court:

Dismissed a case about bias in jury selection. The court found it did not have authority to rule in the matter because the case is still under review in lower courts;

Ruled unanimously that black former employees of a Chicago printing firm can pursue a federal civil rights lawsuit. The high court said employees had a four-year window to file their suit, not two years, as a lower appeals court had ruled.

Refused to consider an appeal from two musicians who claim they were cheated by rocker Ozzy Osbourne. Bassist Robert Daisley and drummer Lee Kerslake sought royalties for their work on Osbourne albums "Blizzard of Ozz" and "Diary of a Madman."

Refused to consider whether a Montana man's foul language to a law enforcement officer was free speech protected by the Constitution. Malachi Robinson, had been fined $50 for calling a deputy a "(expletive) pig."

The Associated Press contributed to this article.

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A NYT's article on same Supreme Court Decision.

The New York Times, May 4, 2004 pA24(L) col 06 (11 col in)

Court Rulings On Emissions Sharply Split Two Groups. (National Desk) Michael Janofsky.

The Supreme Court on Monday, for the second time in a week, issued a decision on emission standards for power plants that cheered industry groups while upsetting environmentalists.

The two actions came in unrelated cases, the one on Monday involving the Tennessee Valley Authority and the other last Wednesday a regional air pollution control agency in Southern California.

Environmental lawyers, trying to gauge the impact of the decisions, said the cases seemed to reflect a certain hostility by the court toward aggressive steps intended to reduce air pollution.

''The common denominator is that their attitude presents a serious threat to clean air,'' said Ann Johnston, a lawyer for Clear the Air, a national coalition of environmental groups that work to reduce emissions from old power plants.

To the contrary, said Scott H. Segal, director of the Electric Reliability Coordinating Council, a trade organization for power-generating companies that applauded both Supreme Court decisions as upholding the Clean Air Act and its overall objectives.

''In both cases, we are talking about a mechanism to achieve the goal of clean air,'' Mr. Segal said. ''We're not trying to change the goal.''

In the case on Monday, the court refused to hear an appeal by the federal government that would have applied New Source Review, a controversial section of the Clean Air Act governing aging coal-burning plants, to power plants owned by the Tennessee Valley Authority. The court let stand a decision by an appeals court in Atlanta that had said it lacked jurisdiction to rule on the merits of the case -- whether the Environmental Protection Agency had properly applied the review -- because the means of review, through Administrative Compliance Orders, was unconstitutional and a violation of due process.

Last Wednesday, the court ruled 8 to 1 that the South Coast Air Quality Management District, which sets emission rules in the Los Angeles metropolitan area, cannot impose stricter standards on vehicle fleet operators than those established by the federal Clean Air Act.

Environmental lawyers said the impact of both decisions is poor air quality in regions of the country struggling with excessive pollution.

The T.V.A. case carries the additional possibility that the E.P.A. could lose use of the compliance order, which has become one of its primary weapons in enforcing the Clean Air Act, including New Source Review, which applies to older power plants and requires their operators to add emission-lowering devices any time the plants are modified.

The Bush administration has the option to fight for the merits of New Source Review in the T.V.A. case by refiling the case in a trial court. But that would involve one federal agency, the E.P.A., suing another, T.V.A., which rarely happens.

Charles Miller, a spokesman for the Justice Department, said no decision had been made.