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

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No. 02-658 |

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Supreme Court of the Apited States

Supreme Court, U.S.

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STATE OF ALASKA, DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL..,

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 THE

CENTER FOR ENERGY AND ECONOMIC

DEVELOPMENT IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

®

PAUL M. SEByY*

ADAM T. DEVOE

*Counsel of Record

FRIEDLOB, SANDERSON, PAULSON

& TOURTILLOTT, LLC

1775 Sherman Street, 21st Floor

Denver, Colorado 80203

Telephone: (303) 571-1400

Attorneys for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

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IDENTITY AND INTERESTS OF AMICUS CURIAE. ...

OPINIONS BELOW, JURISDICTION, STATUTORY

PROVISIONS INVOLVED AND STATEMENT OF

REASONS FOR GRANTING THE WRIT .................

I.

II.

ITl.

THE NINTH CIRCUIT’S DECISION POSES

A GRAVE THREAT TO THE ABILITY OF

THE STATES TO ADDRESS A REAL AND

GROWING NATIONAL ENERGY CRISIS.....

THE NINTH CIRCUITS DECISION GROSSLY

DISTORTS THE BALANCE OF STATE AND

FEDERAL RESPONSIBILITIES SET OUT IN

THE STRUCTURE OF THE CLEAN AIR ACT...

THE NINTH CIRCUIT'S DECISION USURPS

THE ROLE CONGRESS GAVE TO THE

STATES IN PERMITTING NEW ELECTRIC

GENERATION FACILITIES UNDER THE

THE NINTH CIRCUITS FLAWED DECI-

SION RESTS ON NON-BINDING FEDERAL

POLICY DIRECTIVES THAT UNLAWFULLY

CONSTRAIN CLEAR STATE AUTHORITY ....

SI TIT ceinicissninisnistiinnccimcencennssensenevesesutenvevennensese

12

15

ii

TABLE OF AUTHORITIES

Page

CASES

Alabama Power Co. v. Costle, 606 F.2d 1068-+B-€-

Cle. 2BTB) ..ccccceccccecssvensesescsccscnensnnnnnnnnsiseennnnnnannnnnnnEEEE 11

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.

0D NN 4

Alaska DEC v. EPA, 298 F.3d 814 (9th Cir.

| Nn 7,9, 13, 14

Alaska Prof’! Hunters Ass’n v. FAA, 177 F.3d 1030

(DD.C. Clip. 26D) nccccecesccoccsunescncscnnnnscnnnnnsiannnnnnnnnnnnnnnnnnn 13

Bethlehem v. Gorsuch, 742 F.2d 1028 (7th Cir. 1977) ........ 8

Caruso v. Blockbuster-Sony Music Entertainment

Center, 174 F.3d 166 (3d Cir. 1999)............ccccccccececeeeeees 13

Florida Power & Light Co. v. Costle, 650 F.2d 579

(Bite Clie. 2BBE) ..cccccccecsceceosecessnsennnenunsunnnninninannnnnnnnannnEEE 4

Northern Plains Resource Council v. EPA, 645 F.2d

tT Le |) 11

Paralyzed Veterans of America v. D. C. Arena L.P,

yee Fy filet: | 13

Shalala v. Guernsey Memorial Hosp., 514 U.S. 987

9) | 13

Sur Contra La Contaminacion v. EPA, et al., 202

F.36 468 (at Clip. BBB GP nccccescssssssesesnsicscseniinanen 11

Syncor Int'l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir.

) |, | RT Hann NENT 13

Train v. Natural Resources Defense Council, 421

UB. GB (RFE). .ccccececdecsrccsoccnsesnsnsnsennnnnneninnnannnnnnnnnn 6,7

TABLE OF AUTHORITIES — Continued

Page

United States Tel. Ass’n v. FCC, 28 F.3d 1232 (D.C.

ace crcercnepenensznsnnnsssssccessccssees 13

Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997)............000- 8

REGULATIONS

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LESSEE IEA AO TOTES )

RULES

Supreme Court Rule 10.1(C) ............ccsccccesesseseeeeeneereseeeeeenee 2

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STATUTES

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iv

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

National Energy Policy, Report of the National

Energy Policy Development Group (May 2001) .............. 5

Annual Energy Outlook, Department of Energy,

Report #: DOE/EIA-0383 (2001) .0.........:.ccccccccceseeeeeeeeeees 5

Sen. Rep. No. 127, 9th Cong., 1st Sess: 31 (1977)

reprinted in 3 1977 Legis. Hist. at 1405 ................:0c000+- 11

Er a Bae GF Ca cctarteretncrcntertcentncnctennieainntadniinns 11, 14

Bh A, es Ci ercnnrtenevennnvoccninnnienseniepsbtmnnanbtemanil 4,5

1

IDENTITY AND INTERESTS OF AMICUS CURIAE’

Pursuant to Supreme Court Rule 37, The Center for

Energy and Economic Development (CEED) submits this

brief Amicus Curiae in support of Petitioner State of

Alaska. Written consent to the filing of this brief has been

granted by counsel for all parties, copies of which have

been filed with the Clerk of the Court.

Amicus, CEED, is a non-profit organization formed by

the nation’s coal-producing companies, railroads, a num-

ber of electric utilities, equipment manufacturers, and

related organizations for the purpose of educating the

public, including public-sector decision-makers, about the

benefits of affordable, reliable, and environmentally

compatible coal-fueled electricity. Amicus CEED’s mem-

bers are engaged in socially valuable work. That is, they

provide essential goods and services that improve and

maintain the high quality of life enjoyed in this country.

As demonstrated herein, the implications of Peti-

tioner’s case far transcends its individual situation and

creates problems of nationwide magnitude. Moreover,

Amicus believes that the ruling of the Ninth Circuit is

inconsistent with a clearly stated legislative act of Congress

and is also at odds with the precedents of this Court that

Clean Air Act (CAA). Further, under the rule of the Ninth

Circuit, tremendous uncertainty has been unnecessarily

’ The parties have consented to the filing of this brief. Counsel for

a party did not author this brief in whole or in part. No person or

entity, other than Amicus Curiae, its members, or its counsel made a

monetary contribution to the preparation and submission of this brief.

2

injected into the permitting process for new electrical

generation facilities. Amicus believes that this uncertainty

will unduly interfere with meeting the critical and growing

demand for such facilities, as identified by both the Clin-

ton and Bush administrations.

Amicus CEED wishes to underscore the fact that

Supreme Court Rule 10.1(c) lists among the considerations

governing review on certiorari, the circumstance when a

United States Court of Appeals has decided an important

question of federal law that has not been, -but should be

settled by this Court, or has decided a federal question in a

way that conflicts with applicable decisions of this Court.

Amicus CEED submits that both of these grounds for

review are present in this case.

¢

OPINIONS BELOW, JURISDICTION,

STATUTORY PROVISIONS INVOLVED

AND STATEMENT OF THE CASE

Amicus CEED hereby adopts Petitioner’s statement

and description of the opinions below, jurisdiction, statutes

involved, and statement of the case.

SJ

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision, allowing EPA to usurp

the authority that the federal CAA clearly delegates to the

States, poses a grave threat to the ability of the States to

make Best Available Control Technology (BACT) and other

important discretionary decisions under the CAA. Under

both the express statutory provisions involved here and

the structure of the federal CAA, EPA's actions are an

3

invasion of the prerogatives left to the states for fashion-

ing individual CAA Prevention of Significant Deterioration

(PSD) permits. As such, the Ninth Circuit’s decision

upholding EPA’s desire for “national consistency” is anti-

thetical to the statutory framework created by Congress.

Further, both the Clinton and Bush administrations

have determined that more than 1,000 new electricity

generation facilities are needed in this country in order to

meet future demands. Unless addressed now, the Ninth

Circuit’s decision will stand as a major obstacle to meeting

these critical energy demands, particularly in the several

large western states that comprise the Ninth Circuit. The

questions presented by this case also involve issues of

national importance and call into question the ability of

the States to make decisions entrusted to them by Con-

gress to, among other things, ensure both clean air and

adequate energy supplies for their citizens. This Court

should grant certiorari to resolve the conflict created by

the Ninth Circuit’s decision in order to preserve the

balance of power that Congress enacted under the CAA

and to restore greater certainty to a process that must be

utilized in order for additional future energy development

to occur.

¢

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT’S DECISION POSES A

GRAVE THREAT TO THE ABILITY OF THE

STATES TO ADDRESS A REAL AND GROW-

ING NATIONAL ENERGY CRISIS

Energy and production needs in the future will be

local, regional, and national. Recognizing these needs,

4

Congress gave the States “great flexibility” to achieve the

goals of the CAA, Florida Power & Light Co. v. Costle, 650

F.2d 579, 587 (5th Cir. 1981), including the ability to allow

economic development within the tandem duty of preserving

air quality in clean air areas. As the D.C. Circuit explained

in Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir.

1979), “(I]n the allocation of responsibilities made by Con-

gress” with respect to preventing the significant deteriora-

tion of-air quality, “maximum limitations have been set.” Jd.

at 364. “These must be observed by the states, but assuming

such compliance, growth-management decisions were left by -

Congress for resolution by the states.” Jd.

A State’s authority to determine BACT for a particular

source is “key” to its ability to “manage [its] allowed

internal growth” under the CAA. Id. at 364. The “flexible

approach” chosen by Congress “enables [a] State to con-

sider the size of the plant, the increment of air quality

which will be absorbed by any particular major emitting

facility, and such other considerations as anticipated and

desired economic growth for the area.” S. Rep. No. 95-127,

at 31 (emphasis added). Congress’s decision to make BACT

“strictly a State and local decision,” id., makes sense, as it

is the States — not the EPA — that are most sensitive to

particular local needs and concerns. Further, that Con-

gress required BACT to be determined on a “case-by-case,”

facility-specific basis, 42 U.S.C. § 7479(3), highlights the

importance of such local considerations.

As indicated recently by the current federa!

administration:

A fundamental imbalance between supply and

demand defines our nation’s energy crisis ... [if

eneigy production increases at the same rate as

during the last decade our projected energy

5

needs will far outstrip expected levels of produc-

tion.

See, National Energy Policy, Report of the National Energy

Policy Development Group (May 2001), p. viii.’

The Clinton Administration found that:

“Before building new capacity, utilities are ex-

pected to use other options to meet demand

growth — maintenance of existing plants, power

imports from Canada and Mexico, and purchases

from cogenerators. Even so, assuming an average

plant capacity of 300 megawatts, 1,310 new plants

with a total of 393 gigawatts of capacity (exclud-

ing cogenerators) are projected to be needed by

2020 to meet growing demand and to offset re-

tirements. Annual Energy Outlook, Department

of Energy, Report #: DOE/EIA-0383 (2001),’ En-

ergy Information Administration.”

The Bush Administration has reached a similar

conclusion: “Over the next ten years, demand for electric

power is expected to increase by about 25 percent, and

more than 200,000 megawatts of new capacity will be

required.” National Energy Policy, Report of the National

Energy Policy Development Group (May 2001).

Amicus submits that the Ninth Circuit’s decision

allowing EPA to dictate BACT to the States, means allow-

ing the EPA to “assume control” of the States’ “developing

policy choices as to the most practicable and desirable

* Available at http//www.energy.gov/HQPress/releases0 l/maypr/energy

_policy. htm.

* Available at http://www/eia.doe.gov/oiaf/archive/aeo0 L/index.html.

6

methods of restricting total emissions to a level consistent

with” the limitations set out in the CAA. Train v. Natural

Resources Defense Council, 421 U.S. 60, 80 (1975). As such,

the import of the Ninth Circuit’s decision is plainly not

what Congress intended. See S. Rep. No. 95-127, at 32

(“Nothing could be more detrimental to the intent of [the

PSD] section and the integrity of [the] act than to have the

process encumbered by bureaucratic delay.”).

The Ninth Circuit’s determination directly threatens

the ability of the States to effectively and efficiently

permit facilities that will provide the much needed power

generation, in the next ten to twenty years. By threatening

the States ability to make BACT determinations, and other

discretionary state determinations under the CAA, the

bureaucratic delays sought to be avoided when authorizing

the CAA will become iuherent in energy project development.

This will have an unnecessary chilling effect on such projects

-— thereby delaying or prohibiting resolution of critical energy

deficiencies. Where, as here, EPA can override the decision of

a State permitting authority at any time, even after the

public comment period has closed, the permittee has no

reason to believe that the permit issued by the state agency

has any real meaning or allows construction of the permitted

project. As such, the CAA permitting process will become an

untenable obstacle to the states in their efforts to address

current and growing energy demands.

II. THE NINTH CIRCUIT’S DECISION GROSSLY

DISTORTS THE BALANCE OF STATE AND

FEDERAL RESPONSIBILITIES SET OUT IN

THE STRUCTURE OF THE CLEAN AIR ACT

Congress has declared in the federal Clean Air Act

(CAA) that “Air pollution prevention and air pollution

SE —_-

7

control at its source is the primary responsibility of States

and local governments.” 42 U.S.C. § 7401(3). Despite Con-

gress’ clear emphasis on state primacy, the Ninth Circuit has

held that “the EPA has the ultimate authority to decide

whether [a] state has complied with the [Best Available

Control Technology] BACT requirements of the Act.” Alaska

DEC v. EPA, 298 F.3d 814, 820 (9th Cir. 2002). Amicus

submits that the Ninth Circuit’s flawed decision merits

prompt review because that Court has failed to recognize

that EPA’s authority under the CAA is limited to acting when

a State has failed to comply with requirements or prohibi-

tions of the CAA and the requirements to make a BACT

determination — a function much different than “ultimate

review authority” over discretionary permitting determina-

tions made by the State. See, 42 U.S.C. § 7413 and § 7477.

Further, the Ninth Circuit's flawed decision stands in

sharp conflict with decisions of this Court and the lower

Courts concerning federal and state division of responsibili-

ties under the CAA. For example, the Supreme Court, in

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

(1975), addressed whether states could use CAA § 110(aX3)

to seek revisions of State Implementation Plans (SIPs) for

the purpose of easing limitations on a single pollution source.

This Court held that a state could do that so long as the

revised plan would enable the state to attain and maintain

national ambient air quality standards (NAAQS). See, Train,

421 U.S. at 78. In interpreting CAA § 110, this Court stated:

“(T]he Act gives the agency [EPA] no authority to

question the wisdom of a state’s choices of emis-

sions limitations if they are part of a plan which

satisfies the standards of Section 110(aX2), and the

agency may devise and promulgate a specific plan

8

of its own only if a state fails to submit an imple-

mentation plan which satisfies those standards.

Section 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 am-

bient air, the state is at liberty to adopt whatever

mix of emission limitations it deems best suited to

its particular situation.” Train, supra, 421 U.S.

at 79. (emphasis added).

Similarly, in recognition of the primacy of the states’

role under the CAA, the Circuit Courts have rebuffed

efforts by EPA to mandate specific emission limitations in

SIPs. In Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997),

the D.C. Circuit specifically determined that EPA lacked

the authority under CAA § 110 to condition approval of a

- SIP on the state’s adoption of a particular control measure.

Further, in Bethlehem v. Gorsuch, 742 F.2d 1028, 1036 (7th

Cir. 1977) the Seventh Circuit rejected an EPA effort to

only partially approve a SIP, thereby rendering the state

plan more stringent than the state intended, stating:

[T]he Clean Air Act creates a partnership be-

tween the states and the federal government.

The state proposes, though the EPA disposes.

The federal government, through the EPA, de-

termines the ends — the standards of air quality

— but Congress has given the states the initiative

and a broad responsibility regarding the means

to achieve those ends through the state imple-

mentation plans and timetables of compli-

ance.... The Clean Air Act is an experiment in

federalism, and the EPA may not run roughshod

over the procedural prerogatives that the Act has

reserved to the states, ... especially when, as in

this case, the agency is overriding state policy.

9

The Ninth Circuit’s failure to rebuff EPA’s usurpation of

state authority, which Congress clearly reserved for states

like Alaska, stands in sharp conflict with this Court and the

several Courts of Appeals’ decisions which properly recognize

the “division of responsibilities” set out by Congress.

Ill. THE NINTH CIRCUIT’S DECISION USURPS

THE ROLE CONGRESS GAVE TO THE STATES

IN PERMITTING NEW ELECTRIC GENERA-

TION FACILITIES UNDER THE CLEAN AIR

ACT

Contrary to the statutory flexibility Congress left to

State permitting authorities and federal case law defining

BACT, the Ninth Circuit determined that EPA was acting

within its authority when issuing an order finding that

Alaska’s BACT determination was not in compliance with

the CAA and the Alaska SIP. Alaska DEC v. EPA, 298 F.3d

814, at 817.

New Source Review (NSR) is the federal CAA permit-

ting program that regulates the construction of major new

stationary sources and major modifications to existing

stationary sources. EPA’s NSR regulations require such

sources to perform health and visibility/air quality impact

analyses, install stringent air pollution control equipment,

and obtain permits for new construction at major station-

ary sources. NSR consists of more than one distinct sub-

program: PSD is for areas in attainment with health-

based National Ambient Air Quality Standards (NAAQS);

Non-attainment NSR (NNSR) is for those that are not in

attainment with NAAQS.

The current PSD program is set forth in two sets of

regulations. One set is 40 CFR 52.21 which is part of the

10

federal PSD program that applies as part of a federal

implementation plan (FIP) for states that do not have an

approved PSD program meeting the regulatory require-

ments of 40 CFR 51.166 — the other set of regulations

containing minimum standards for PSD provisions in

SIPs. In this and most cases, Alaska has an EPA approved

PSD SIP program which delegates authority to the State

of Alaska to perform health and visibility and air quality

impact analyses, require installation of air pollution

control equipment and issue permits under the State

administered PSD program.‘

Among the PSD requirements Congress imposed in

the CAA is that the State require application of BACT to

any major modification at a major emitting facility subject

to the PSD program. 42 U.S.C. § 7475(aX4). The CAA

mandates that BACT limits are to be determined on a

case-by-case basis by the permitting authority. As Con-

gress explained, in making this “key decision [BACT] ...

the State is to take into account energy, environmental,

and economic impacts and other costs of the application of

best available contro] technology. The weight assigned to

* Contrary to EPA's actions in this case, the avowed intent of the

Bush administration is to simplify the PSD permitting process and

allow facilities to more quickly, reasonably, and efficiently make process

changes that respond to market place needs and demands. EPA

finalized NSR/PSD reforms on December 19, 2002, that are aimed at

allowing “sources more flexibility to respond to rapidly changing

markets and to plan for future investment in pollution control tech-

nologies.” Available at http:/www.epa.gov/air/nsr-review/. “The changes

are intended to provide greater regulatory certainty, administrative

flexibility, and permit streamlining, while ensuring the current level of

environmental protection and benefit derived from the program and, in

certain respects, resulting in greater environmental protection.” Jd.

a ee

11

such factors is to be determined by the State.” Sen. Rep.

No. 127, 9th Cong., Ist Sess. 31 (1977) reprinted in 3 1977

Legis. Hist. at 1405 (emphasis added).”

Federal courts have consistently endorsed the statu-

tory requirement that BACT be determined through a

flexible, balancing process by the permitting authority.

The U.S. Court of Appeals for the District of Columbia

Circuit has pointed out, for example, that “BACT is de-

fined, in general, as a level of control technology appropri-

ate to the facts and circumstances of the particular

applicant.” Alabama Power v. Costle, 606 F.2d 1068, 1085

(D.C. Cir. 1979) (emphasis added). Previously, the U.S.

Court of Appeals for the Ninth Circuit observed that “the

BACT determination is ... source specific.” Northern

Plains Resource Council v. EPA, 645 F.2d 1349, 1359 (9th

Cir. 1981) (emphasis added). Further, the Ninth Circuit

also previously correctly concluded that, while a particular

control technology may be BACT for one plant, the permit-

ting authority “might decide that for [another] . . . facility

. [that technology is] inappropriate for economic or

energy or environmental reasons.” Jd. (emphasis added).

See also, Sur Contra La Contaminacion v. EPA, et al., 202

F.3d 443, 447 (1st Cir. 2000). Unlike the present decision

* See also 1977 Legis. Hist. at 729 (emphasis added) (“One objec-

tion which has been raised to requiring the use of the best available

control technology is that a technology demonstrated to be applicable in

one area of the country is not applicable at a new facility in another

area because of difference[s] in feedstock material, plant configuration

or other reasons. For this and other reasons, the committee voted to

permit emission limits based on best available technology on a case-by-

case judgment at the State level. This flexibility should allow such

differences to be accommodated and still maximize the use of improved

technology.”). (emphasis added)

12

of the Ninth Circuit, court decisions, therefore, confirm

what the language of the CAA makes plain: a BACT

determination must be made on a case-by-case basis by

the State after taking into account energy, environmental,

and economic impacts and other costs. Uniformity is not

mandated by the BACT provisions; flexibility is.

Despite EPA’s objections to the contrary, Alaska did all

that was required and more by reviewing the Red Dog Mine

application and emission reduction proposals in accordance

with the statutory requirements. Alaska’s determination was

based on a reasoned assessment of the environmental and

economic impacts and consideration of all of the CAA § 165

statutory BACT factors. Ironically, the BACT determination

made by Alaska also had a greater net environmental and

human health benefit than that required by EPA.

IV. THE NINTH CIRCUIT’S FLAWED DECISION

RESTS ON NON-BINDING FEDERAL POLICY

DIRECTIVES THAT UNLAWFULLY CONSTRAIN

CLEAR STATE AUTHORITY

While the Ninth Circuit expressly upheld EPA’s Orders

vetoing the Alaska-issued PSD permit, Amicus wishes to

underscore that this case also demonstrates how state

authority and discretion in the permitting of new facilities is

also subject to increasing erosion through the alarming trend

of EPA and the federal land management agencies (e.g.

National Park Service, U.S. Forest Service) in using “guid-

ance documents” that seek to elevate those agencies’ roles in

the CAA permitting process at the expense of the states.

The Ninth Circuit correctly observed that Alaska was

not bound by EPA guidance documents that have not been

subjected to full public notice and comment under the

13

Administrative Procedure Act. However, the Ninth Circuit

nonetheless justified its decision to uphold EPA's Orders

based on its determination that the low NOx control technol-

ogy selected was not appropriate under EPA’s more than ten

year old “draft” guidance document setting forth the “top-

down BACT approach.” Alaska DEC v. EPA, at 10. However,

nowhere in the CAA and implementing regulations is there

any reference to the “most stringent technology” or the “top-

down BACT” approach that the Ninth Circuit relied on in

upholding the EPA orders. Notably, the Ninth Circuit did not

(and could not) cite any statute, regulation or case law that

imposes a legal obligation on an applicant or permitting

authority that requires the “top down” approach for inter-

preting and/or applying the statutory BACT factors.*

Contrary to the Ninth Circuit’s decision, nowhere in

the CAA is there any suggestion that certain of the BACT

criteria — energy, environmental and economic impacts

* While the Ninth Circuit erroneously relied upon EPA's draft 1990

NSR Manual, the Court should have instead recognized that an agency

policy or guidance, unlike a rule, “does not seek to impose, elaborate or

interpret a legal norm” and cannot bind an agency (or the State in this

case) to a “particular legal policy position.” See, Syncor Int'l Corp. v.

Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997). United States Tel. Ass'n v.

FCC, 28 F.3d 1232, 1234 (D.C. Cir. 1994). The Ninth Circuit's decision is

thus inconsistent with federal jurisprudence recognizing that when

agencies apply guidance in a direct and substantive fashion, federal

courts have uniformly set those administrative actions aside and

required federal agencies to comply with the notice and comment

requirements of § 553 of the federal Administrative Procedure Act

(APA). See, Paralyzed Veterans of America v. D. C. Arena L.P., 117 F.3d

579, 586 (D.C. Cir. 1997) (quoting Shalala v. Guernsey Memorial Hosp.

514 U.S. 987, 100 (1995). See also, Alaska Prof’! Hunters Ass’n v. FAA

177 F.3d 1030, 1034 (D.C. Cir. 1999); Caruso v. Blockbuster-Sony Music

Entertainment Center, 174 F.3d 166, 1876-178 (3d Cir. 1999).

14

and other costs — should be emphasized over others.

Further, nowhere in the CAA or implementing regulations

is there any indication that BACT limits must be the lowest

emission limits that are technically and economically feasible

(or technically and economically infeasible, as in this case)

for a similar source or source category. Indeed, such an

interpretation of the CAA would essentially make BACT

limits equivalent to the statutorily distinct “lowest achiev-

able emission rate” limits which Congress has imposed

only on new or modified sources locating in nonattainment

areas. See 42 U.S.C. § 7501(3). Further, nowhere in the

CAA or Alaska SIP is there any presumption that some

technology is BACT simply because it has been deter-

mined to be BACT for a given type of emission source in

another location or for another industry. Congress recog-

nized that the balancing test is mandatory simply because

site-specific considerations will warrant emphasis on

different considerations. 1977 Legis. Hist. at 729.

The State of Alaska was required to and did “transmit

to the Administrator [EPA] a copy of each permit applica-

tion relating to a major emitting facility received by such

State and provide notice to the Administrator of every

action related to consideration of such permit.” See, 42

U.S.C. § 7475(d). The Ninth Circuit stated that “In July

1999, the EPA entered the discussion over Cominco’s

application at the urging of the National Parks Service,

which had expressed concern that the ‘nitrogen oxide

emissions .. . could affect vegetation at Cape Krusenstern

National Monument and Noatak National Preserve.’”

Alaska DEC, at 817. Notably, the speculative comments

from the National Park Service (NPS), and the EPA

subsequent involvement in the permitting action came

15

after the close of the public comment period on the pro-

posed permit for the Red Dog Mine.

Under the CAA, FLMs are required to protect the air

quality related values of any lands within a Class ] area

and consider whether a major emitting facility will have

an adverse impact on such values. See, 42 U.S.C.

§ 7475(d)(2B). However, the CAA neither mandates nor

carves out a role for FLMs in Class IJ areas. The Cape

Krusenstern National Monument and the Noatak Na-

tional Preserve are not mandatory Class I areas and have

not been designated Class I areas under the review and

recommendation authority of the NPS. Despite EPA and

the NPS’s late entry into the State of Alaska’s administra-

tive process, the Ninth Circuit gave full credence to the

administrative alternatives of EPA and the NPS based

upon purported authority contained only in agency guid-

ance documents but not regulatory provisions.

+

CONCLUSION

Amicus submits that the Ninth Circuit’s opinion is bad

law, is injurious to the present and future public welfare, has

no place in federal jurisprudence, and merits prompt review.

Respectfully submitted,

PAUL M. SEBY*

ADAM T. DEVOE

*Counsel of Record

FRIEDLOB, SANDERSON, PAULSON

& TOURTILLOTT, LLC

1775 Sherman Street, Suite 2100

Denver, Colorado 80203

Telephone: (303) 571-1400

Attorneys for Amicus Curiae