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

No. 02-658

In the

Supreme Court of the United States

+

STATE OF ALASKA, DEPARTMENT OF

ENVIRONMENTAL CONSERVATION

Petitioner,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et ai.,

Respondents.

+

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

+

M. REED HOPPER

Counsel of Record

ROBIN L. RIVETT

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation

i

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 pollution standard?

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TABLE OF CONTENTS

Page

QUESTION PRESENEED .ccccccccccsccesencssueueeneee i

TABLE OF AUTIOORZEEED 0 cccccceosecsscasseueeeneenen ili

INTEREST OF AMICUS CURIAE ................055 lene 8

STATEMENT OF THe CARE 2. cccccccccseccsssncueues 2

INTRODUCTION AND SUMMARY

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I. CONGRESS INTENDED THE STATES—NOT

EPA—TO ASSUME RESPONSIBILITY FOR DAY-

TO-DAY ENFORCEMENT OF THE NATIONAL

AIR QUALITY STANDARDS ..........6..0-00e0 ee 5

Il. DEFERENCE TO STATE PERMIT DECISIONS

UNDER A FEDERALLY APPROVED AIR

POLLUTION PLAN FURTHERS THE

GOALS OF FINALITY AND FAIRNESS,

REGULATORY EFFICIENCY, LOCAL

EMPOWERMENT, AND CONSIDERATION

OF LOCAL INTERESTS AND NEEDS ............ 10

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TABLE OF AUTHORITIES

Page

Cases

Alaska Dept. of Environmental Conservation v.

United States EPA, 298 F.3d 814

eres eras cccesccoccccccccces 8

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) ........6.660 000s 2

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

Defense Council, 467 U.S. 837 (1984) ..........6.44. 2

Douglas County, Oregon v. Babbitt,

EEE PTT TTT TTT 2

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ............. 8-9

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

ELE SSS OTT T TET TT ITT 2

Steel Company v. Citizens for a Better

Environment, 523 U.S. 83 (1998) ..............445. 2

Train v. Natural Resources Defense Council,

EEO TTT TTT TTT TTT 5-6

Statutes

EEL ILE LISS OPT CTTTT TELE TET TT 5

ESSE EES OTP CTETTTTTTTTE TTY 3

DP PPEREEERGESS cece cccccoccccccce 3, 8,14

iV

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Cook, Steven D., 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. ..... 10-11, 13

Elliott, E. Donald, Federal Versus State Environmental

Protection Standards: Can a National Policy Be

Implemented Locally?,

22 Envtl. L. Rep. 10010 (1992). ...........045. 5-7,9

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) ................ 7,11

Melnick, Marc & Willes, Elizabeth, Watching

the Candy Store: EPA Overfiling of Local Air

Pollution Variances,

20 Ecology L.Q. 207 (1993) .........00 ce eeees 12-13

Wiens, Susan K. & Hefner, William P.,

Disharmony in EPA’s Overfiling Policy,

15 SUM Nat. Resources & Env’t 3 (2000) ....... 11-12

ce

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INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of Petitioner, State of Alaska.' 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. 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 in

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 Environmental

Protection Agency (EPA) may override a discretionary permit

decision of a state, under a federally-approved state air

pollution program, without a showing that the permitted activity

will violate any federal air quality standard. That decision

defies common sense and undermines the intent of Congress as

expressed in the Clean Air Act (CAA) to rely on the states to

ensure local air quality.

' 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.

2

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.

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. The

mine sits on Association property 100 miles above the Arctic

Circle in a remote part of the state. It 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 a

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. This

required a state permit.

The State of Alaska is an “attainment,” or clean air area,

for nitrogen oxide (NOx). That is, its air quality is cleaner than

the national standards for this constituent. Because the new

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

3

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 chapter 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 it 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

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.

4

EPA ordered ADEC to require the use of SCR on the new

generator. Because 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 court for a determination of

whether EPA has unilateral authority to override the State’s

discretionary BACT determination. In July, 2002, the Ninth

Circuit held that EPA can override a state’s BACT

determination. The State of Alaska then petitioned the case to

this Court.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Under the Clean Air Act, the State receives federal

authorization to implement its own air pollution program only

after satisfying 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 EPA authorization for its state air

pollution program. At no time in this case has EPA questioned

Alaska’s fitness to keep its federal 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, EPA’s objection in this case

stems from its preference for a more costly, but less effective,

emission control technology than the State of Alaska selected

for the Red Dog Mine. Because the State’s selection of “Low

NOx” controls would have minimized overall emissions at the

mine, it defies common sense and the clear purpose of the Act

to allow EPA to interfere with the State’s implementation

strategy. Moreover, federal deference to discretionary state

permitting decisions ensures finality and fairness in the

administrative process, improves regulatory efficiency,

5

empowers local enforcement officials, and allows for an

appropriate accommodation of local interests and needs.

Congress could not have intended that the statutory scheme of

relying on state implementation would be undermined by EPA

overriding individual state permit decisions.

ARGUMENT

t

CONGRESS INTENDED THE STATES—

NOT EPA—TO ASSUME RESPONSIBILITY

FOR IMPLEMENTATION OF THE NATIONAL

AIR QUALITY STANDARDS

Under the Clean Air Act, EPA is authorized to set general

goals for air quality. But the means of achieving those goals

was left to the states: “Increasingly. the primary role of .

implementing these goals falls to the states.” See E. Donald

Elliott, Federal Versus State Environmental Protection

Standards: Can a National Policy Be Implemented Locaily?,

22 Envtl. L. Rep. 10010 (1992). Indeed, in the CAA, Congress

expressly 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 set out by this Court in

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

(1975). In that case, this Court acknowledged that Congress

plainly charged EPA with the responsibility to set national

6

ambient air quality standards. Jd. 2: 79. But, this Court

observed that EPA is just as plainly “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.” /d.

According to this Court:

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.

No doubt the willingness of a state to adopt a State

Implementation Plan under the CAA, like Alaska did in this

case, rests in part on the recognition that the state will have

wide discretion in how it achieves the national ambient air

quality standards without ad hoc interference by EPA.

Although the states were generally considered recalcitrant in

assuming this responsibility in the 1970’s, hard evidence of a

change toward strong state implementation of environmental

laws was apparent by the mid 1980’s. See Elliott, supra, at

10010. Congressional Budget Office calculations for 1987

es +e

7

indicated, for example, that well over 80% of total government

expenditures on the environment occurred at state and local

levels. Jd. This same pattern was reflected in clean air

expenditures. /d. In enforcement, the change was even more

striking. Jd. Approximately 70% of all environmental

enforcement cases was initiated by the states. Jd. This shift

toward increased state responsibility formed the basis for

Elliott’s conclusion: “In many areas today, particular state

agencies are as sophisticated, if not more so, than EPA in their

approaches to environmental problems.”

As other authors have noted:

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

designed to address the varying types of regulated

entities in each state are necessary to obtain the high

levels of voluntary compliance without which the

vast regulatory programs will not succeed.

Hubert H. Humphrey & LeRoy C. Paddock, The Federal and

State Roles in Environmental Enforcement: A Proposal for

More Effective and More Efficient Relationship, 14 Harv. Envtl.

L. Rev. 7, 36-37 (1990).

The effectiveness of the State of Alaska to enforce its air

pollution program and advance the purposes of the CAA was

certainly demonstrated in this case.

8

The CAA requires BACT to be determined “on a case-by-

case basis, taking into account energy, environmental, and

economic impacts and other costs.” 42 U.S.C. § 7479(3). It

would be hard to find a statutory provision calling for greater

discretion. In accordance with this provision, ADEC

considered a number of pollution control devices, including

SCR, and 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 Dept. of Environmental

Conservation v. United States EPA, 298 F.3d 814, 817 (9th Cir.

2002). ADEC also took into account the potential loss of jobs

and decline in world competitiveness at the mine if SCR was

required. But EPA ignored all of these factors and ordered

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

economically infeasible, but less effective overall emission

control technology.

Showing greater sophistication than EPA demonstrated in

addressing this permit issue, ADEC went beyond the economic

considerations and 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 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 that it could

not require by regulation and minimize emissions at the same

time.

This Court encouraged this approach in an analogous

situation in 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. This

Court determined the Act did not confer such jurisdiction. To

9

the contrary, this Court concluded that the citizen suit provision

of the Clean Water Act was intended to support the

government’s enforcement program and not displace it. To

make its point, this Court suggested a hypothetical. “Suppose,”

this Court said, “the Administrator [of EPA] identified a

violator and issued a compliance order.” Jd. 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 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 EPA can displace a state’s air

pollution enforcement program by invalidating a discretionary

state air permit decision, as the lower court held it could, at

virtually any time, to pursue its own enforcement goals, then the

state’s discretion to enforce the CAA in the public interest

would be curtailed considerably. EPA’s overriding order to use

less effective but more expensive SCR emission controls not

only robbed the State of Alaska of its discretionary power to

determine BACT, but the order would harm the local

community and, ironically, the environment. This defies

common sense and the clear purpose of the Act. It is no wonder

that “[s]tates sometimes claim that the agency . . . pays more

attention to details than to overall policy objectives.” Elliott,

supra, at 10010. Congress could not have intended to

undermine the primary responsibility of the states, to enforce

the CAA, by ad hoc federal invalidation of discretionary state

permit decisions.

10

Il

DEFERENCE TO STATE

PERMIT DECISIONS UNDER

A FEDERALLY APPROVED AIR POLLUTION

PLAN FURTHERS THE GOALS OF FINALITY

AND FAIRNESS, REGULATORY EFFICIENCY,

LOCAL EMPOWERMENT, AND CONSIDERATION

OF LOCAL INTERESTS AND NEEDS

In our brief in support of the Petition for Writ of

Certiorari, we cited two articles demonstrating how EPA’s

nullification of state enforcement actions—and by analogy

discretionary state permit decisions--undermines federal goals

for environmental protection. In the first article, the author

examined the EPA practice of “overfiling” under the CAA

which, not unlike the order invalidating the air pollution permit

in this case, involves an independent enforcement action when

the state has already initiated an enforcement action against the

same party. See Steven D. Cook, 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.

In sum, Cook identified three substantial problems with

EPA’s intrusion into state enforcement decisions. First,

subsequent negotiations with EPA over conditions or penalties

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 enforcement decisions. Jd. Based on these observations,

Cook concluded that EPA interference with state enforcement

strategies actually undermines the federal goals of deterrence,

11

fair and equitable treatment of the regulated community, and

rapid resolution of environmental problems. /d. at 1095-1101.

The same can be said for EPA interference with state permit

decisions.

In the second article, Humphrey and Paddock concluded,

much like Cook, that when 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

role of the states in addressing environmental problems. See

Humphrey & Paddock, supra, at 39.

But Cook, Humphrey, and Paddock are not alone in this

assessment. According to Wiens and Hefner, “The

Environmental Protection Agency’s . . . oversight role [under

the Clean Water Act, the Clean Air Act, and the Resource

Conservation and Recovery Act] has been clashing recently

with Congress’ explicit intent to vest primary enforcement

authority in the states.” Susan K. Wiens & William P. Hefner,

Disharmony in EPA’s Overfiling Policy, 15 SUM Nat.

Resources & Env’t 3 (2000). The clash derives from ad hoc

EPA interference with state enforcement decisions. /d. at 3.

Although Wiens and Hefner report that EPA intrusion into

state programs is rare, involving only about 0.1% of state

enforcement actions in fiscal years 1994 and 1995, they note

that the numbers do not account for the disruption to state

programs caused by the mere threat of EPA interference which

“causes numerous problems.” Jd. at 6. One of the more serious

problems is “uncertainty in the public mind.” Jd. After all,

with whom should industry deal? “Must it negotiate with both

state and federal authorities? Should it insist that the EPA sign

off on all agreements with authorized state agencies?” Jd.

Other problems include waste of federal and state

resources. Jd. at 7. In the present case, for example, both the

12

State of Alaska and the EPA are diverting limited resources to

litigate the scope of EPA authority caused by EPA invalidation

of the State’s discretionary BACT determination—a use of

resources that should be unnecessary. Beyond these problems,

however, Wiens and Hefner conclude that EPA intrusion into

state enforcement decisions causes “distrust among the

agencies” although “each believes it is acting in the best interest

of the environment.” Jd.

On the other side of the coin, Melnick and Willes point

out the numerous benefits that accrue when EPA defers to state

and local permit decisions. See Marc Melnick & Elizabeth

Willes, Watching the Candy Store: EPA Overfiling of Local

Air pollution Variances, 20 Ecology L.Q. 207 (1993).

Although these authors do not favor absolute local autonomy,

they have found compelling arguments for relying on state and

local permit decisions, including “arguments for finality and

fairness, efficiency, empowerment, and local interests.” Jd at

250.

A. Finality and Fairness

According to Melnick and Willes, federal reliance on state

and local permit actionss would accomplish two purposes.

“First, it would allow for finality in decisions.” Jd. at 251.

Applicants who receive a permit would be assured that their

actions are authorized and need not fear a federal challenge. Jd.

They would also have to contend with only one regulator which

would allow businesses more definite planning. Jd. Second,

“{s]ole enforcement authority might also be more fair.” Jd.

A source that fulfills the local requiremeuts feels

whiplashed when it suddenly finds itself subject to a

federal enforcement action. While regulators may

not be overly sensitive to this issue, the fairness

argument has merit in the equitable realms of the

courts .... Furthermore, fairness creates a better

13

atmosphere for cooperation between the regulated

and the regulators, which produces better

compliance.

Id.

B. Efficiency

“Fragmented enforcement authority can lead to duplication

of effort, to delay, and to underenforcement.” /d. at 252. Cook

made a similar observation:

Federal efforts merely duplicate the state’s actions by

requiring [the regulated entity] to go through a

second set of negotiations. This new round of

negotiations usually produces no additional benefit

to the environment.

Cook, supra, at 1095.

C. Empowerment

Giving greater autonomy to local officials “vests in them

greater responsibility for the overall enforcement scheme of the

CAA.” Melnick & Willes, supra, at 252. Exclusive autonomy

would eliminate speculation about EPA interference with local

decisions. Jd. This would increase the credibility of local

officials that would result in greater cooperation from the

regulated .ommunity. Jd. “Such cooperation would further the

goals of environmental protection.” Jd.

D. Local Interests

Local officials take into account local conditions, like

ADEC did in this case. “The resulting decision making is more

responsive to local needs than it would be under a strict

interpretation of the CAA.” /d. at 253. According to Melnick

and Willes, “While EPA may look only at environmental

effects, local agencies are more likely to consider the whole

picture.” Jd.

14

In this case, EPA looked only at the environmental effects

of BACT on the new generator without considering the

emissions from the facility as a whole. As ADEC determined,

the use of “Low NOx” technology on all the generators,

including those not svbiect to BACT, would reduce overall

emissions more thar “(R on the new generator. Not only is

this in keeping with a proper BACT determination, that requires

a case-by-case consideration of “energy, environmental, and

economic impacts and other costs,” 42 U.S.C. § 7479(3), but it

also makes good sense and furthers the purpose of BACT and

the CAA to reduce air pollution. Congress could not have

intended to disturb such state determinations by overzealous

EPA oversight.

—+

CONCLUSION

EPA interference with discretionary state decisions, under

a federally-approved state air pollution program, including state

BACT determinations, undermines the statutory role of the

states as the primary enforcer of national air quality standards.

The invalidation of Alaska’s air permit in this case also defies

common sense and the purpose of the Clean Air Act to

minimize air pollution.

Nee at

—— ee

15

For these reasons, this Court should overturn the decision

below.

DATED: April, 2003.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

ROB L. RIVETT

Pacific Legal Foundation

10360 Old Placerville Roed,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation