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Backing a 1999 enforcement action by the U.S. Environmental Protection Agency (EPA), the U.S. Supreme Court said on Jan. 21 that the agency has authority under the Clean Air Act to halt the construction of a major pollutant-emitting facility even though construction had been approved by state authorities. Alaska Dept. of Envtl. Conservation v. Environmental Protection Agency, No. 02-658. The case arose from an Alaska Department of Environmental Conservation (ADEC) decision to green-light a mining company’s construction of two new power generators even though the generators would emit high levels of nitrogen oxide. ADEC granted the permit on the condition that the mining outfit would reduce the emissions by using a technology that was less effective than the statutorily required “best available control technology.” When ADEC twice failed to explain satisfactorily to the EPA why it had approved something less than the best available technology, the EPA issued a stop-work order under the act. The 9th U.S. Circuit Court of Appeals later upheld the EPA action. Affirming, 5-4, the court said that the EPA had the power to issue the order if the state’s best available technology selection was not reasonable. Reasonableness, the majority said, was couched in terms of the permitting authority taking into account the energy, environmental and economic impact of the technology selected. Justice Ruth Bader Ginsburg wrote the majority opinion, joined by justices Stephen G. Breyer, Sandra Day O’Connor, David H. Souter and John Paul Stevens. Joined by Chief Justice William H. Rehnquist and justices Antonin Scalia and Clarence Thomas, Justice Anthony M. Kennedy dissented. Full text of the decision BANKING LAW On Jan. 20, the court agreed to hear arguments in a case arising under the Truth in Lending Act (TILA) in Koons Buick Pontiac GMC Inc. v. Nigh, No. 03-377. The 4th Circuit allowed a verdict of more than $24,000 to stand in a case brought by a Virginia man against a car dealership. The dealer argued that the original $1,000 statutory limit adopted in 1968 as a cap on TILA recoveries had not been rendered inapplicable by subsequent amendments to another part of the cap provision. The dealers said there was no proof of any congressional intent to affect that change, but the 4th Circuit said there was no evidence Congress did not intend such an effect. Full text of the decision CRIMINAL PRACTICE The justices on Jan. 20 also agreed to review the constitutionality of a Michigan constitutional amendment and statutory scheme that says criminal defendants who plead guilty, guilty but mentally ill or nolo contendre, can appeal only by leave of the Michigan Court of Appeals. Kowalski v. Tesmer, No. 03-407. A group of defendants and attorneys who accept appointments challenged the statute. An en banc 6th Circuit ruled that the practice was unconstitutional and that the lawyers had third-party standing to make the challenge. On Jan. 16, the court granted certiorari in the case of a Cuban national who challenged his indefinite detention by the U.S. Immigration and Naturalization Service while it arranged to deport him. Benitez v. Wallis, No. 03-7434. The INS chose to deport the Cuban due to a lengthy criminal record, and a finding that he posed a danger to the community and was likely to engage in further violent behavior. The 11th Circuit found that he could be detained indefinitely because he was in the country illegally in the first place. Arriving in the 1980 Mariel boatlift, he was not allowed in officially, but was paroled into the country and never left.

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