Amicus Curiae Brief — Alaska Dept. of Environmental Conservation v. EPA

rFEL

No. 02-658 Y DEC 30 2002

In the OPCS OF TE CTORK

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Supreme Court of the United States

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STATE OF ALASKA, DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et ai.,

Respondents.

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On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

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BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

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M. REED HOPPER

Counsel of Record

ROBW L. RIVETT

Pacific Foundation

10360 Placerville Road,

Suite 100

Seca” tts 22”

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Foundation

Suprerac ( sous, U s.

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QUESTION PRESENTED

Under the Clean Air Act, can the EPA override a State

permit decision when the State is authorized to carry out its

own air pollution program and the permit does not violate any

federal standard?

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TABLE OF CONTENTS

QUESTION PRESENTED .......cccccccccccscccccccess

TABLE OF AUTHORITIES ............00 cece ceeceees

IDENTITY AND INTEREST OF AMICUS CURIAE ........

STATEMENT OF THE CASE ........cccccccccccvcccens

UTR TIN ccc cc cccvcccccccvccvcccceseessseees

SUMMARY OF THE ARGUMENT .............--+0005:

I. THE PETITION SHOULD BE GRANTED

BECAUSE THE DECISION BELOW

AUTHORIZES EPA TO USURP THE

ENFORCEMENT ROLE ASSIGNED TO THE

STATES UNDER THE CAA WHICH

. UNDERMINES THE FUNDAMENTAL CONCEPT

OF FEDERAL AND STATE COOPERATION

EMBODIED IN THE ACT AND NULLIFIES THE

CLEAR CONGRESSIONAL INTENT TO RELY

ON STATE ENFORCEMENT STRATEGIES ........

Il. THE PETITION SHOULD BE GRANTED

BECAUSE THE IMPOSITION BY EPA OF AN

INDEPENDENT AND CONFLICTING

ENFORCEMENT STRATEGY IS CONTRARY TO

THE REGULATORY SCHEME ADOPTED BY

CONGRESS TO PROMOTE STATE

RESPONSIBILITY FOR CLEAN AIR AND IS

COUNTERPRODUCTIVE TO THE GOALS OF

BEEBGCAR, .cccccccccssevcccecessseseusnenennen

COTATI cccccccccccccccccscccesceseseneeeenee

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TABLE OF AUTHORITIES

Page

Cases

Alaska v. United States EPA,

298 F.3d 814 (9th Cir. 2002) ..............05.. 10-11

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) ............ 2

Bennett v. Spear, 520 U.S. 154 (1997) ...... 66.660 c une 2

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) .... 2.2.6... cece cues 2

Douglas County, Oregon v. Babbitt,

TE secre ecesecncccoceccecoccs 2

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ........... 11-12

Power Engineering Company v. United States,

303 F.3d 1232 (10th Cir. 2002) ©... 2.2... ... ce eee eee 5

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

ie eke eekecesceccocccceces 2

Steel Company v. Citizens for a Better Environment,

CC Er 2

Train v. Natural Resources Defense Council,

i cee peek eek secesccecececcces 7-8

Statutes

eee eee cee cesbncesecsccccccce 5

LENS SELES SES OEE TOTES TET TTT 7

LEE ESL IPO E OPT PETES TTT TELE TY 12

iV

TABLE OF AUTHORITIES—C ontinued

Cook, Steven, State/Federal Enforcement of the Clean Air

Act and Other Federal Pollution Laws: Federal

Overfiling on State Enforcement Proceedings,

S957 BD. V ALL. Rev. BGES 2c cccccccccccccccces 13-14

Humphrey, Hubert H. & Paddock, LeRoy C.,

The Federal and State Roles in Environmental

Enforcement: A Proposal for More Effective

and More Efficient Relationship,

14 Harv. Envtl. L. Rev. 7 (1990)............ 8-9, 14-15

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IDENTITY AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of the Petition for Writ of Certiorari.' Written consent

was granted by counsel for all parties and lodged with the Clerk

of this Court.

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. PLF was founded in 1973 and provides a voice in

the courts for mainstream Americans who believe in limited

government, individual rights, and free enterprise. PLF litigates

nationwide in state and federal courts with the support of

thousands of citizens from coast to coast.

In its fight to protect fundamental constitutional rights,

PLF becomes involved in cases that raise important public

policy considerations that may create significant legal

precedents. Amicus participation is approved by a voluntary

Board of Trustees where PLF’s perspective will assist the Court

in resolving the underlying legal issues. PLF supports a broad

view of the public interest and promotes balance and common

sense in the administration of laws and regulations.

There is an alarming trend among federal agencies and the

courts to expand the enforcement power of the federal

government by adopting statutory interpretations that cannot be

squared with the plain meaning of the act, the intent of

Congress, or constitutional principles of federalism. This case

is a singular example of government overreaching.

The Ninth Circuit has held that the EPA may override a

discretionary permit decision of a State, under a federally-

' Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the

preparation or submission of this brief.

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approved state air pollution program, without a showing that the

decision will violate any federal air pollution standard. If it

stands, the Ninth Circuit opinion will undermine state and

federal cooperation—an essential ingredient in addressing the

Nation’s goals for cleaner air—and nullify the enforcement

power of the States as recognized by the Clean Air Act (CAA).

PLF has a long history of amicus participation in

environmental cases before this Court. For example, PLF was

an amicus participant in Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers, 531 U.S.159 -

(2001); Steel Company v. Citizens for a Better Environment,

523 U.S. 83 (1998); Bennett v. Spear, 520 U.S. 154 (1997);

Douglas County, Oregon v. Babbitt, 516 U.S. 1042 (1996);

Babbitt v. Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687 (1995); and Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837 (1984). PLF

believes its public policy perspective will provide a necessary

viewpoint in this case.

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STATEMENT OF THE CASE

Teck Cominco Alaska, Inc. (Cominco) owns and operates

a mine, known as the Red Dog Mine, in the State of Alaska in

partnership with the Northwest Arctic Native Association on

Association property. The mine lies 100 miles above the Arctic

Circle in a remote part of the state and is the largest zinc

concentrate producer in the world. The closest residential

communities are the native villages of Kivalina and Noatak.

The mine is the largest private employer in a vast area with an

historically high unemployment rate. Power for the mine,

which operates continuously, is provided by the mine’s six

diesel-driven electric generators. To increase production, in

1998 Cominco proposed the addition of a new generator. The

State of Alaska is an “attainment” or clean air area for nitrogen

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oxide (NOx) and because this generator would increase NOx

emissions, Cominco was required to obtain a Clean Air Act

permit known as a PSD (Prevention of Significant

Deterioration) permit. PSD permits are available from the

Alaska Department of Environmental Conservation (ADEC)

under the State’s EPA-approved clean air program. As a permit

condition, new sources.of NOx emissions must be equipped

with BACT (best available control technology) to minimize

pollutants. BACT is defined as:

an emission limitation based on the maximum

degree of reduction of each pollutant subject to

regulation under this act emitted from or which

results from any major emitting facility, which the

permitting authority, on a case-by-case basis, taking

into account energy, environmental, and economic

impacts and other costs, determines is achievable for

such facility through application of production

processes and available methods, systems, and

techniques, including fuel cleaning, clean fuels, or

treatment or innovative fuel combustion techniques

for control of each such pollutant.

42 U.S.C. § 7479(3).

One option for BACT involved the use of Selective

Catalytic Reduction, or SCR, on the new generator. SCR is a

process involving injection of ammonia or urea into the exhaust

and combining with a catalyst to ensure more complete

combustion. However, ADEC concluded that the cost of SCR

was excessive—$2.9 million in capital costs and nearly

$635,000 in annual operating expenses. As an alternative,

Cominco proposed installing “Low NOx” controls on ail of its

generators, not just the one subject to permitting. This method

relies on high-combustion air temperatures to atomize toxic

particles and reduce NOx emissions. ADEC determined that

this technology was more cost effective than SCR and the use

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of “Low NOx” on ail the generators would reduce overall

emissions from the mine more than SCR on the new generator.

In 1999, ADEC designated “Low NOx” controls as BACT and

issued Cominco a PSD permit.

Only after the close of the comment period did EPA

express its disagreement with ADEC’s BACT determination

ordering ADEC to require the use of SCR on the new generator.

Since SCR had never been required as BACT for this type of

generator, was less cost effective than “Low NOx” controls, and

could result in more overall emissions, ADEC refused to

modify its permit. As a result, EPA ordered Cominco not to

operate the new generator. Cominco and ADEC then filed suit

in federal cour. .or a determination of whether the EPA has

unilateral authority to override the State’s discretionary BACT

determination. In July, 2002, the Ninth Circuit held that the

EPA can override a state’s BACT determination. The State of

Alaska has now petitioned the case to this Court.

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INTRODUCTION

This is apparently the first case in which the EPA has

invaded a state’s enforcement authority and vetoed a state

BACT determination. Until now, EPA has deferred to the

States as the CAA requires. This case represents a dangerous

precedent related to EPA oversight of state air pollution

programs and changes the standard for BACT. EPA has

consistently maintained that BACT requires a consideration of

the type of emission controls used in similar situations and the

economic efficiency of the controls imposed. But in this case,

the BACT imposed by EPA is unique (i.e., Selective Catalytic

Reduction has never been required for a generator of the type

used at the mine) and the EPA is now asserting that the

economic efficiency of the controls is irrelevant to a BACT

determination if the company has the financial ability to

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implement the more costly emission controls. Moreover, the

Ninth Circuit opinion has created a conflict with the decisions

of this Court and other circuits.

This case is important for other reasons as well. With

increasing frequency, EPA is interfering with state enforcement

efforts under a number of federal environmental statutes. In

addition to the CAA, states may implement their own programs

under the Clean Water Act (CWA) and the Resource

Conservation and Recovery Act (RCRA). These state programs

must be equal to, or more stringent than, the corresponding

federal law and the state programs must be approved by the

EPA. But, the Agency still overrides state permit decisions and

files duplicative federal suits against polluters because the EPA

is dissatisfied with the conditions imposed or the penalties

sought. This has bred distrust between state and federal

enforcers and has generated uncertainty among the citizens in

the regulated community who cannot rely on their dealings with

state officials so long as the EPA claims it can invalidate state

enforcement decisions. In addition to the present CAA case,

this Court will be asked in the current term to consider an

RCRA case where the EPA has interfered with a state’s

enforcement effort. That case is Power Engineering Company

v. United States, 303 F.3d 1232 (10th Cir. 2002).

On November 14, 2002, this Court granted an extension

of time to Pacific Legal Foundation (amicus in this case) to file

a Petition for Writ of Certiorari in Power Engineering to

January 17, 2003 (Application No. 02A393). In that case, the

EPA filed a federal suit to require certain financial assurances

from Power Engineering after the State had already settled its

dispute and had won $1.2 million in penalties from the

company. Under RCRA, “[a]ny action taken by a state under a

hazardous waste program . . . shall have the same force and

effect as action taken by the Administrator [of the EPA]” 42

U.S.C. § 6926(d). However, the EPA claims it has unilateral

authority to enforce RCRA notwithstanding the state program.

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Clearly, then, the present case is not an iso!ated incident, nor is

the issue of EPA authority in light of a state authorized

enforcement program limited to the CAA. Although these

federal environmental laws have different statutory provisions

defining the federal-state relationship, they all vest authority in

the State to pursue its own enforcement strategy. Whether the

EPA can interfere with that strategy, thereby breeding distrust

and uncertainty, is an important federal question warranting

definition by this Court. Therefore, this Court should grant the

Petition for Writ of Certiorari.

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SUMMARY OF THE ARGUMENT

An objective of the Clean Air Act, as with similar

environmental laws, is to establish a viable federal-state

partnership in the Act’s implementation. This is essential to

achieving the statutory goals of a cleaner and safer

environment. However, the EPA’s practice of undermining

state enforcement decisions generates distrust, creates

uncertainty, and generally defeats attempts at meaningful

cooperation between state and federal officials. The EPA’s

practice of interfering with state enforcement efforts also wastes

state and federal resources, conflicts with the historical role of

states in dealing with local environmental problems as

recognized by the CAA, and is counterproductive.

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ARGUMENT

I

THE PETITION SHOULD BE GRANTED BECAUSE

THE DECISION BELOW AUTHORIZES EPA TO

USURP THE ENFORCEMENT ROLE ASSIGNED

TO THE STATES UNDER THE CAA WHICH

UNDERMINES THE FUNDAMENTAL CONCEPT

OF FEDERAL AND STATE COOPERATION

EMBODIED IN THE ACT AND NULLIFIES THE

CLEAR CONGRESSIONAL INTENT TO RELY

ON STATE ENFORCEMENT STRATEGIES

This Court should grant the Petition for Writ of Certiorari

not only because the decision below is contrary to the plain

meaning of the CAA and conflicts with the decisions of this

Court and other circuits, as documented by Petitioners in the

Petition for Certiorari, but also because the EPA’s insidious

practice of overriding discretionary decisions of the States

disrupts the federal-state partnership and undercuts the States’

enforcement goals.

In the CAA, Congress recognized the preeminent role of

the States in addressing air pollution:

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State by submitting an

implementation plan for such State which will

specify the manner in which national primary and

secondary ambient air quality standards will be

achieved and maintained within each air quality

control region in such State.

42 U.S.C. § 7407(a).

The effect of this provision was Clearly set out by this Court in

Train v. Natural Resources Defense Council, 421 U.S. 60

(1975):

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The [EPA] is plainly charged by the Act with the

responsibility for setting the national ambient air

standards. Just as plainly, however, it is relegated by

the Act to a secondary role in the process of

determining and enforcing the specific, source-by-

source emission limitations which are necessary if

the national standards it has set are to be met. Under

§110(a)(2), the Agency is required to approve a state

plan which provides for the timely attainment and

subsequent maintenance of ambient air standards,

and which also satisfies that section’s other general

requirements. The Act gives the Agency no

authority to question the wisdom of a State’s choices

of emission limitations if they are part of a plan

which satisfies the standards of §110(a)(2), and the

Agency may devise and promulgate a specific plan

of its own only if a State fails to submit an

implementation plan which satisfies those standards.

§110(c). Thus, so long as the ultimate effect of a

State’s choice of emission limitations is in

compliance with the national standards for ambient

air, the State is at liberty to adopt whatever mix of

emission limitations it deems best suited to its

particular situation.

Id. at 79.

But notwithstanding the clearly stated deference the EPA

is to give authorized States, the EPA seems to believe its

mandate for cooperation evaporates once a State is certified.

This is evident from the EPA’s practice of nullifying state

enforcement decisions, like Alaska’s BACT determination in

this case, to seek its own enforcement goals.

In their article, The Federal and State Roles in

Environmental Enforcement: A Proposal for More Effective

and More Efficient Relationship, 14 Harv. Envtl. L.. Rev. 7

9

(1990), Hubert H. Humphrey and LeRoy C. Paddock recount

the EPA’s history of interfering with state enforcement efforts

under numerous environmental laws, including the Clean Air

Act, the Clean Water Act, and the Resource Conservation and

Recovery Act. Although the authors are focused on the practice

of “overfiling,” where the EPA sues a violator concurrently or

subsequently to the state, the authors’ conclusions apply equally

to the present case where the EPA has nullified the State’s

enforcement strategy. Indeed, the EPA’s unilateral issuance of

an order to both the State of Alaska and Cominco, invalidating

the State’s permit, was a form of “overfiling.” The power to

veto a state permit decision and the power to file a separate

federal lawsuit when the State has acted derives from the same

source — EPA’s assertion, upheld by the Ninth Circuit below,

that the Agency is not bound by the enforcement decisions of

the State under a federally-authorized environmental protection

program.

According to the authors, one of whom was Attorney

General of the State of Minnesota, unilateral enforcement by

the EPA is disruptive to state enforcement programs in a

number of ways. Primarily, it increases the reluctance on the

part of regulated entities to deal only with state enforcement

officials. Obviously, if EPA can usurp a State’s decision

making power, regulated entities cannot be certain that a permit

decision, or compliance schedule, or a penalty amount agreed

to by the State is final. One result is that States may find it

harder to negotiate concessions with regulated entities. /d. at

13-14. At best, this is counterproductive. At worst, it

unnecessarily delays the resolution of polluting activities to the

ultimate injury of the people and the environment.

Another result of EPA’s invasion of the State’s

enforcement authority is that it breeds distrust between federal

and state enforcement officials. Indeed, the very act of

“overfiling” or countermanding a State permit decision, as

occurred in this case, is a breach of trust. Once a State is

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authorized to enforce the federal program, the State stands in

lieu of the EPA. This authorization is meaningless, however, if

the EPA can override virtually any act of the State with which

federal officials disagree. Moreover, this disagreement may not

have anything to do with the State’s substantive response to the

environmental problem. So it was in this case.

ADEC concluded that “Low NOx” controls was BACT for

the Red Dog Mine because it minimized emissions and was

substantially more cost effective than other alternatives. The

Ninth Circuit acknowledged this fact and the EPA has not

shown otherwise. See Alaska v. United States EPA, 298 F.3d

814, 817 (9th Cir. 2002). Nevertheless, the EPA ordered

ADEC and the mine to utilize a more expensive, perhaps even

economically infeasible, but potentially less effective emission

control technology. This action not only demonstrates the

EPA’s open disregard for the State’s duly authorized air

pollution program, but undermines Alaska’s enforcement

objectives.

Those objectives include demonstrating a concern for the

local economy and encouraging permit applicants to go beyond

regulatory requirements to improve air quality. When ADEC

considered BACT alternatives for the Red Dog Mine, it

expressed considerable concern for the potential loss of jobs

that would result from the more expensive SCR technology the

EPA preferred. According to ADEC, the Red Dog Mine caused

a dramatic reversal in unemployment rates in the local borough:

“Before the Mine opened in 1990, borough wages

were well below state average wages .... The Mine

now provides high paying year round employment.

... Cominco’s contractors, vendors, and wages have

boosted the borough’s private sector economy.

. .. With government support and endorsement of

Cominco’s operations, including the Production Rate

Increase Project, the Red Dog Mine will continue to

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influence and benefit the residents and economy of

this region.”

298 F.3d at 823.

ADEC also expressed concern that the use of SCR, rather

than “Low NOx” controls, would hamper the mine’s world

competitiveness. Jd. These are the very types of “economic

impacts and other costs” the CAA expressly requires the State

to consider in determining BACT. See 42 U.S.C. § 7479(3).

But beyond the economic considerations, the State took

into account the overall goal of the CAA and the purpose of

BACT, to minimize emissions, and authorized the use of “Low

NOx” controls. Instead of the more costly and potentially less

effective SCR, Cominco was willing to install “Low NOx”

technology on all of the mine’s generators, even those not

subject to BACT requirements. Thus, the State was able to gain

concessions from the Red Dog Mine it could not require by

regulation and minimize emissions at the same time.

This Court recognized an analogous situation in a case

called Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987). In Gwaltney, this Court

considered whether the citizen suit provision in the Clean Water

Act authorized citizen suits for wholly past violations. The

Court determined the Act did not confer such jurisdiction.

Concluding that the citizen suit provision of the Clean Water

Act was intended to support the government’s enforcement

program and not displace it, the Court suggested a hypothetical

to make its point. Suppose, the Court said, the Administrator

of the EPA identified a violator and issued a compliance order.

Id. at 60. “Suppose further that the Administrator agreed not to

assess or otherwise seek civil penalties on the condition that the

violator take some extreme corrective action, such as to install

particularly effective but expensive machinery, that it otherwise

would not be obliged to take.” Jd. at 60-61. “If citizens could

file suit, months or years later, in order to seek the civil

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penalties that the Administrator chose to forgo, then the

Administrator’s discretion to enforce the Act in the public

interest would be curtailed considerably.” Jd. at 61.

But that is the case here. If the EPA can invalidate a state

enforcement decision with which it disagrees, as the lower court

held, to pursue its own enforcement goals, then the State’s

discretion to enforce the CAA in the public interest would be

curtailed considerably.

Demonstrating a concern for the local economy and

encouraging permit applicants to go beyond regulatory

requirements to improve air quality are both laudable and

legitimate state enforcement objectives. But EPA’s invalidation

of ADEC’s permit decision undermined the State’s enforcement

program by advancing federal goals that are inconsistent with

the State’s goals. Moreover, the EPA’s nullification of

Alaska’s enforcement strategy harms the local community and,

ironically, the environment.

Under the CAA, the State receives federal authorization

only after satisfying the EPA that the State program meets all

federal standards for implementation, maintenance, and

enforcement. See 42 U.S.C. § 7410(a)(1). Alaska met these

exacting standards and received state authorization from the

EPA. At no time in this case has the EPA questioned the

State’s fitness to keep its State authorization or threatened

sanctions against the State for failure to meet federal air

pollution standards, although the EPA has the power to impose

sanctions, including the suspension of federal highway moneys.

See 42 U.S.C. § 7509. At root, the EPA’s only objection stems

from the EPA’s preference for a more costly, but less effective,

control technology than the State of Alaska selected. Sinve the

State’s selection would have minimized emissions, it defies

common sense and the clear purpose of the Act to allow the

EPA to interfere with the state’s enforcement strategy.

Therefore, the Petition for Writ of Certiorari should be granted.

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THE PETITION SHOULD BE GRANTED

BECAUSE THE IMPOSITION BY EPA

OF AN INDEPENDENT AND CONFLICTING

ENFORCEMENT STRATEGY IS CONTRARY

TO THE REGULATORY SCHEME ADOPTED

BY CONGRESS TO PROMOTE STATE

RESPONSIBILITY FOR CLEAN AIR AND

IS COUNTERPRODUCTIVE TO THE

GOALS OF THE CAA

In his article, State/Federal Enforcement of the Clean Air

Act and Other Federal Pollution Laws: Federal Overfiling on

State Enforcement Proceedings, 1987 B.Y.U.L. Rev. 1085,

Steven Cook examines the practice of “overfiling,” and by

implication EPA nullification of other state enforcement

decisions, such as Alaska’s BACT determination in this case.

He concludes that, on balance, EPA interference with state

enforcement strategies does not help the agency achieve its

goals of deterrence, fair and equitable treatment of the regulated

community, and rapid resolution of environmental problems.

Cook identifies three main problems with EPA

interference with state environmental enforcement. First,

subsequent negotiations with the EPA over conditions or

perties can delay resolution of environmental problems. /d.

at 1095. Second, EPA interference discourages cooperation

between the public and the States because of the knowledge that

whatever the State decides the EPA may have to be satisfied

later. Jd. at 1096. And third, EPA interference undermines

state credibility with the public because the regulated

community cannot rely on state permit or other enforcement

decisions. Jd.

The bottom line for Cook is that

[fjederal efforts merely duplicate the state’s actions

by requiring [the regulated entity] to go through a

14

second set of negotiations. This new round of

negotiations usually produces no additional benefit

to the environment.

Id. at 1095.

This is certainly born wut in the present case where

Cominco must now go through separate permit negotiations

with the EPA. And, as Cook suggests, this new round of

negotiations is unlikely to produce any additional benefits to the

environment as “Low NOx” controls provide the greatest

potential for overall emission reductions.

In summary, Cook maintains that when EPA invades the

State’s enforcement authority it fails to acknowledge the needs

and goals of the state program, the regulated public is treated

unequally, and resolution of environmental issues is delayed

because the State’s credibility is eroded. He suggests,

moreover, that EPA’s goals can be better accomplished through

increased cooperation with the States. Jd. at 1101. Humphrey

and Paddock agree. They conclude that when the EPA

overrides the States it results in redundant enforcement efforts,

introduces uncertainty into the state enforcement program, saps

the limited enforcement resources of state and federal agencies,

undermines and disrupts the federal-state working relationships,

and conflicts with the historical role of the State in addressing

environmental problems. Roles in Environmental Enforcement,

supra at 39.

Twenty years ago, one of the main reasons for an

increased federal role in environmental protection

was the inadequacy of state programs, including state

enforcement. Today, allowing states and, in some

cases, local governments, to reassume a greater

enforcement role may be the only way to ensure an

effective enforcement presence among the tens of

thousands of regulated entities that now exist in each

state. Strong, well-focused enforcement efforts

15

designed to address the varying types of regulated

entities in each state are necessary to obtain high

levels of voluntary compliance without which the

vast regulatory programs will not succeed.

Id. at 36-37.

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CONCLUSION

When the EPA invalidates a State’s enforcement decision

because it would have exercised its discretion differently, it

creates distrust between federal and state officials, erodes

confidence in state decision-making, nullifies the State

enforcement strategy, and is counterproductive. In short, EPA

interference with state enforcement efforts, including state

BACT determinations, undermines the role of the States,

recognized in the CAA, as primary enforcers of federal ambient

air quality standards.

For these reasons, this Court should grant the Petition for

Whit of Certiorari and overturn the decision below.

DATED: December, 2002.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

ROBIN L. RIVETT

Pacific Legal Foundation

10360 Old Placerville Road,

- $uite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation