Alaska Department of Environmental Conservation v. Environmental Protection Agency
2004 U.S. LEXIS 820, 540 US 461, 157 L. Ed. 2d 967 (2004)
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Rule of Law:
The Clean Air Act grants the Environmental Protection Agency (EPA) the authority to enforce the Act's requirements by issuing stop-construction orders when it finds a state permitting authority's 'Best Available Control Technology' (BACT) determination is not based on a reasoned analysis supported by the administrative record.
Facts:
- Teck Cominco Alaska Inc. (Cominco) operates the Red Dog Mine, a major zinc mine in northwest Alaska, and sought to expand its production.
- The expansion project required a permit from the Alaska Department of Environmental Conservation (ADEC) and a determination of the 'Best Available Control Technology' (BACT) for a new power-generating engine, MG-17.
- ADEC's own analysis initially identified Selective Catalytic Reduction (SCR), a technology that reduces nitrogen oxide emissions by 90%, as the most stringent control technology and found it to be both technically and economically feasible.
- Cominco proposed an alternative technology, Low NOx, which reduces emissions by only 30%, and declined to provide ADEC with specific financial data to assess the economic impact of requiring SCR, citing confidentiality.
- Despite its own findings and a lack of economic data from the company, ADEC ultimately selected the less effective Low NOx as BACT in the final permit.
- ADEC justified its decision by citing the general economic importance of the mine to the region and the 'disproportionate cost' of SCR, without providing a source-specific analysis of SCR's impact on the mine's profitability or competitiveness.
Procedural Posture:
- The Alaska Department of Environmental Conservation (ADEC) issued a final Prevention of Significant Deterioration (PSD) permit to Teck Cominco Alaska Inc. on December 10, 1999.
- On the same day, the EPA issued an order under the Clean Air Act prohibiting ADEC from issuing the permit.
- The EPA subsequently issued orders directly to Cominco, prohibiting it from beginning construction.
- ADEC and Cominco, as petitioners, sought review of the EPA's orders in the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit first ruled it had jurisdiction over the case, finding the EPA's orders constituted 'final agency action.'
- On the merits, the Ninth Circuit upheld the EPA's orders, concluding the EPA had the statutory authority to review the substance of ADEC's BACT determination and had not acted arbitrarily.
- The U.S. Supreme Court granted Alaska's petition for a writ of certiorari.
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Issue:
Does the Clean Air Act authorize the Environmental Protection Agency (EPA) to issue orders preventing the construction of a major air pollutant emitting facility when the EPA finds that the state agency's Best Available Control Technology (BACT) determination is unreasonable?
Opinions:
Majority - Justice Ginsburg
Yes. The Clean Air Act grants the EPA the authority to review the substance of a state's BACT determination and to issue stop-construction orders if that determination is unreasonable. Sections 113(a)(5) and 167 of the Act provide EPA with broad oversight and enforcement authority over the Act's 'requirements.' The statutory mandate for a facility to use BACT is a substantive requirement, not merely a procedural one, meaning the state's determination must be faithful to the Act's definition of BACT—the 'maximum degree of reduction... achievable.' While states have primary responsibility and discretion in making case-by-case BACT determinations, that discretion is not absolute and must be exercised reasonably. EPA can intervene when a state's decision is arbitrary or not based on a 'reasoned analysis.' In this case, ADEC's decision to reject SCR was unreasonable because it contradicted its own factual findings that SCR was feasible and was based on generalized economic concerns rather than a documented, source-specific analysis of the economic impact on the mine.
Dissenting - Justice Kennedy
No. The Clean Air Act unambiguously assigns the authority to 'determine' BACT to the state permitting authority, not to the EPA. The statute gives the state the discretionary power to weigh various factors, and the EPA's enforcement authority does not extend to second-guessing the substance of a reasonable, discretionary decision made by the state. The EPA's proper course of action, if it disagrees with a state's BACT determination, is to participate in the state's administrative process and seek judicial review in state court like any other 'interested person.' By allowing the EPA to issue unilateral stop-orders, the majority permits an 'end run' around the state's established procedures, improperly shifts the burden of litigation to the state, and undermines the principles of cooperative federalism that are central to the Act's structure.
Analysis:
This decision solidifies the EPA's role as a federal backstop with substantive oversight authority over state-level environmental permitting under the Clean Air Act. It clarifies that a state's discretion is not boundless and that its BACT determinations must be reasonable and well-supported by the administrative record. The ruling prevents a potential 'race to the bottom' by ensuring that states cannot approve less stringent pollution controls based on vague economic justifications without specific evidence. Consequently, state agencies must be more rigorous in documenting their BACT decisions, as they are subject to federal review for reasonableness, not just procedural correctness.
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