Although the Rehnquist Court has shown itself far more sympathetic to states' rights and the concept of shared powers under federalism, its decisions in this area this past Term pointed in no particular decision. If anything, the power of the national government seems to have trumped that of the states at every turn, a trend that the Bush Administration did not welcome.

First, the Court upheld the Environmental Protection Agency's authority to insist that factories and power plants use the "best available" anti-pollution technology and to block construction of those that, in the EPA's view, do not.  By a 5-4 vote in Alaska Department of Environmental Conservation v. Environmental Protection Agency (2004), the Court decided that in a conflict between state and federal standards, those of the national government should prevail.

The case involved the Red Dog Mine, 100 miles north of the Arctic Circle and the biggest private employer in northwest Alaska.  In 1996 the mine owner proposed expanding production by 40 percent, and the plan required a special Clean Air Act permit because Alaska, having met the national standards for nitrogen dioxide pollutants, is required by the law not to allow "significant deterioration" of its good air quality.  The Alaskan conservation agency accepted the mine's proposal to install a pollution device known as Low Nox, as "logistically and economically less onerous" (i.e., cheaper) than an alternative that, while more effective, also cost more.  The EPA vetoed the state decision on the grounds that Low Nox was not the best available pollutant control.

Speaking for the majority, Justice Ruth Bader Ginsburg said that Congress had "expressly endorsed an expansive surveillance role for the EPA," which the agency had exercised properly in regard to the Alaskan action. The dissent by Justice Kennedy, reflecting earlier federalism decisions by the Rehnquist Court, accused the majority of "relegating states to the role of mere provinces or political corporations, instead of coequal sovereigns entitled to the same dignity and respect." Although the case was one of statutory rather than constitutional interpretation, it did have significance for the entire issue of where to draw the line between state and national power. The deciding vote, as usual, came from Sandra Day O'Connor, who in earlier cases had voted with the more federalism-oriented block of Rehnquist, Scalia, Kennedy and Thomas.

The states themselves were divided on the matter, with one group of primarily western states filing amicus briefs on Alaska's side, and a group of northeastern states siding with the EPA. Although the solicitor general vigorously defended the EPA's authority when the case was argued in October 2003, one month later the Bush Administration abandoned more than fifty investigations into violations of the Clean Air Act, and indicated that it had no desire for the agency to exert its full authority under the law. In response to the decision, an EPA spokeswoman said that while pleased, the agency continued "to believe that states have the primary responsibility for the enforcement of the environmental statutes."

In another victory for federal as opposed to state power, the Court by an 8-1 vote ruled that tough anti-smog rules adopted by Los Angeles area cities and counties, which have the worst air quality in the country, had gone too far. In Engine Manufacturers Association v. South Coast Air Quality Management District (2004), Justice Scalia wrote that the local emission rules appear to be blocked by the federal Clean Air Act. Since that law does, however, give states some authority to set their own rules, the high court sent the case back to the Court of Appeals for the Ninth Circuit to reconsider the issues.  Only Justice David Souter dissented, believing the local rules did not violate the federal statute.

In another case that went against state power, a 5-4 majority ruled that taxpayers may use federal courts to challenge state taxes.  In Hibbs v. Winn (2004), Justice Ginsburg held that federal courts can hear challenges to certain state taxes despite a 1937 law that says federal courts may not interfere with "assessment, levy or collection" of state taxes. At issue were income tax credits given to Arizona residents for donating money for private school education.  Those contributions fund grants and scholarships, and are part of a state effort to give parents more choices in educating their children. Most of these grants, however, go to religious schools, and a group of Arizona resident challenged the law as an unconstitutional promotion of religion.

Arizona had the backing of some forty states and the Bush administration, which supports government funding of private religious education. Although the ruling went against the grain of recent federalism decisions, Justice Ginsburg, who wrote the opinion in the Alaska case, noted that "in decisions spanning a near half century, courts in the federal system, including this court, have entertained challenges to tax credits authorized by state law." In fact, just two terms ago in Zelman v. Simmons-Harris (2002) the Court had heard a challenge to a voucher law paid for out of state tax funds. Justice Kennedy again dissented, saying that "state courts are due more respect than this."  The swing vote was once again that of Justice O'Connor.

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