(CN) - Environmental and native groups lost their 9th Circuit bid for review of the government's decision to transfer its water pollution regulating authority to Alaska, despite concerns that the state will be too lenient on polluters.
Various environmental and native groups, including the Akiak Native Community, challenged the Environmental Protection Agency's approval of Alaska's plan to assume responsibility for issuing water pollution permits.
The EPA initially administered the permitting program, but the Clean Water Act allows it to transfer its authority to state officials whose permitting plans meet certain criteria.
Former Gov. Sarah Palin formally applied for the transfer in 2006, but the EPA deemed the application incomplete. Alaska then resubmitted its application in 2008, and the agency it approved it that same year.
Environmental and native groups argued that the EPA had approved the state plan without ensuring that the state's permit decisions were subject to adequate judicial review, that Alaska has the enforcement tools needed to prevent permit violations, and that the state's resources would be adequately protected under the Alaskan National Interest Lands Conservation Act.
The groups also worried that Alaska's system of forcing the losing party to pay attorney's fees would chill would-be plaintiffs from challenging permits in court.
But a 2-1 majority of the 9th Circuit in Anchorage said the EPA's decision does not warrant review.
"[W]e cannot conclude that the EPA's decision was arbitrary or capricious," Judge Richard Clifton wrote for the majority.
He also pointed out that "the EPA did not sign a blank check" with its approval, and that the state program is still subject to "continuing EPA oversight."
"We assume that EPA will take this responsibility seriously," Clifton wrote.
In a partial dissent, Judge Mary Schroeder agreed with the EPA's approval, but said Alaska's program "fails to satisfy Congress's explicit public participation mandate."
"I strongly disagree with the majority's conclusion that Alaska's 'loser pays' attorney's fee system will not adversely affect the public's ability to bring state court challenges to permitting decisions," Schroeder wrote.