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Alaska Dep't of Envtl. Conservation v. EPA

ELR Citation: 34 ELR 20012
Nos. No. 02-658, (U.S., 01/21/2004)

The U.S. Supreme Court holds that the Clean Air Act (CAA) authorizes the U.S. Environmental Protection Agency (EPA) to stop construction of a major pollutant emitting facility permitted by a state authority when EPA finds that the authority’s best available control technology (BACT) determination is unreasonable. CAA §§113(a)(5) and 167 empower EPA to check a state agency’s unreasonably lax BACT designation. The U.S. Congress intended the prevention of significant deterioration (PSD) program to prevent significant deterioration of air quality in clean air areas, and without a federal surveillance role that extends to BACT determinations, this goal is unlikely to be realized. The state authority's views to the contrary do not persuade the Court to reject EPA's long-standing, consistently maintained interpretation of the Act. The authority argued that EPA's enforcement role is restricted to assuring that the permit contain a BACT limitation because the CAA entrusts state authorities with initial responsibility to make BACT determinations. According state authorities initial responsibility, however, does not signify that there can be no unreasonable state agency BACT determinations. Congress vested EPA with explicit and sweeping authority to enforce CAA "requirements" relating to the construction and modification of sources under the PSD program, including BACT. Having expressly endorsed an expansive surveillance role for EPA in two independent CAA provisions, Congress would not have implicitly precluded EPA from verifying a state authority's substantive compliance with the BACT requirement. Nor would Congress have limited EPA to determining whether the state permitting authority had uttered the key words "BACT." The fact that CAA §165(a)(8) expressly requires EPA approval of a state's BACT determination in a limited category of cases does not mean EPA lacks supervisory authority in all other cases. CAA §§113(a)(5) and 167 do not require EPA approval of all state BACT determinations. The provisions simply authorize EPA to act in the unusual case in which a state permitting authority has determined BACT arbitrarily. Here, EPA validly issued the stop orders because the state's BACT designation was not reasonable in light of statutory guides. Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C.J., and Scalia and Thomas, JJ., joined.

Counsel for Petitioner
Jonathan S. Franklin Jr.
Hogan & Hartson
555 13th St. NW, Washington DC 20004
(202) 637-5810


Counsel for Respondent
Thomas G. Hungar
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000