WATER POLLUTION:

Court rejects challenge to Alaska's takeover of EPA permit program

A federal appeals court has rejected a challenge to a U.S. EPA decision allowing Alaska to administer part of the Clean Water Act.

Alaska is one of 46 states that now have permission from EPA to regulate discharges into waterways under the National Pollutant Discharge Elimination System permit program.

EPA approved the state's request to administer the program in 2008, prompting several Alaska native communities and environmental groups to file suit seeking review of the decision.

In a ruling issued Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected the challenge on a 2-1 vote.

The petitioners had asserted that, under the terms of the transfer to state oversight, they would lose some legal protections. That's because the legal challenges to permitting decisions would be subject to state law rather than federal law. For environmental legal groups, the major drawback in that scenario is that, under Alaska law, plaintiffs generally have to pay their opponents' attorneys' fees if they lose a case.

Under federal law, plaintiffs only have to pay attorneys' fees to the other side if they are deemed to be not acting in good faith. The tribes and environmental groups argued that the attorneys' fee rule would deter people lacking substantial financial resources from challenging state actions

Judge Richard Clifton wrote in the opinion that the fees question does not mean that residents of the state will be denied the opportunity to have their voices heard. Most pertinently, Alaska law would still allow for judicial review of any decision.

"Petitioners have not demonstrated that there will be an inadequate opportunity for public participation if the state assumed the responsibility" for the program, Clifton wrote. He also noted that it's not clear whether losing public interest groups would have to pay attorneys' fees in an administrative appeal. The state said in its application procedure that it would only seek attorneys' fees if the challenge were "frivolous or brought simply for purposes of delay," Clifton said.

"The state can be held to that pledge," he added.

In dissent, Judge Mary Schroeder was much more troubled by the attorneys' fees issue. "Alaska law effectively offers access to the state court only to those members of the public or public interest groups who are able and willing to risk the substantial financial burden" of paying the attorneys' fees, she wrote.

Alaska Gov. Sean Parnell (R) welcomed the ruling. "We need to ensure that Alaska has primacy in decisions regarding the use and development of natural resources in our state," he said in a statement. "This opinion helps to achieve this."

Brendan Cummings, an attorney for the Center for Biological Diversity, which was one of the plaintiffs, said that Alaska law "makes it very risky for anyone" to challenge state decisions. He raised doubts as to whether EPA would intervene even if there was evidence that the public were not getting their voices heard because "EPA has never demonstrated the political will to do so for any other state."

Click here to read the opinion.

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