Respondents Brief — Alaska Dept. of Environmental Conservation v. EPA

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JUL | 6 208

No. 02-658

In the Supreme Court of the United States

ALASKA DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS

THEODORE B. OLSON

Solicitor General

Counsel of Record

KELLY A. JOHNSON

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

ROBERT E. FABRICANT

General Counsel

CAROL S. HOLMES

JULIANE R.B. MATTHEWS

Attorneys

Environmental Protection JAMES A. FELDMAN

Agency Assistant to the Solicitor

Washington, D.C. 20460 General

ANDREW J. DOYLE

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals had jurisdiction over this

pre-enforcement challenge to the Environmental Protection

Agency’s administrative orders.

2, Whether, if the Environmental Protection Agency

(EPA) finds that a state permitting authority has not made a

reasonable determination of the best available control tech-

nology as required by Section 165 of the Clean Air Act, 42

U.S.C. 7475(a)(4), the EPA has authority under Sections

113(a)(5) and 167 of the Act, 42 U.S.C. 7413(a)(5) and 7477, to

issue a finding of noncompliance and administrative orders

to prevent construction of a major emitting source.

(I)

TABLE OF CONTENTS

The court of appeals had jurisdiction in this

The Clean Air Act authorizes EPA to issue a stop-

construction order if a States PSD permit is

based on an arbitrary or unreasoned determina-

A. Under the plain language of Sections 113(a)(5)

and 167, EPA has authority to prevent con-

struction of a facility under a permit that does

not comply with requirements of the Clean

——¼dn——

. A permitting authority that has not reasonably

determined the maximum degree of reduction

in pollution achievable for a facility has not

complied with the Act’s BACT requirement

. Petitioner’s remaining arguments that a

BACT determination is an entirely subjective

or discretionary decision that is not subject to

review are mistaken

D. The Court should defer to EPA's interpreta-

tion that it is a “requirement” of the Clean

Air Act that States make reasonable BACT

determinations

(IID)

uuu’

TABLE OF CONTENTS—Continued: Page

III. The court of appeals correctly sustained EPA's

conclusion that petitioner made an unreasonable

BACT determination 44

Conclusion 50

Appendix la

TABLE OF AUTHORITIES

Cases: Page

Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65

(1991) 40

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

Cir. 1979) 3, 29, 37

Allsteel, Inc. v. EPA, 25 F.3d 312 (6th Cir. 1994)... 17, 20, 30

Amoco Oil Co. v. EPA, 959 F. Supp. 1318 (D. Colo.

1997) 21

Arkansas v. Oklahoma, 503 U.S. 91 (1992) 33

Asbestec Constr. Servs., Inc. v. EPA, 849 F.2d 765

(2d Cir. 1988) 17

Barnhart v. Walton, 122 S. Ct. 1265 42, 43

Bennett v. Spear, 520 U.S. 154 (1997) 10, 16, 17

Cameron v. United States, 252 U.S. 450 (1920) 20

Chevron U.S.A., Inc. v. NDRC, 467 U.S. 837 (1984) — . 15, 41

Christensen v. Harris County, 529 U.S. 576

(2000) 41

Citizens for Clean Air v. EPA, 959 F 2d 839 (9th Cir.

1992) 35

Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402 (1971) 24

FTC v. Standard Oil Co., 449 U.S. 232 (1980) 16

General Motors Corp. v. United States, 496 U.S.

530 (1990) 2

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) 28

„

Cases—Continued: Page

Good Samaritan Hosp. v. Shalala, 508 U.S. 402

(1993) 42

Harrison v. PPG Indus., Inc., 446 U.S. 578

(1980) 16, 20, 44

Heckler v. Chaney, 470 U.S. 821 (1985) 35

Hoffman Group, Inc. v. EPA, 902 F 2d 567 (7th

Cir. 1990) 21

Lezecon, Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998) 45

Lloyd A. Fry Roofing Co. v. EPA, 554 F 2d 885

(8th Cir. 1977) 21

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins.

Co., 463 U.S. 29 (1983) 50

New York v. United States, 505 U.S. 144 (1992 38

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

1349 (9th Cir. 1981) 29, 35

Pennsauken Solid Waste Mgmt. Auth., In re, 569 A.2d

826 N. J. Super. Ct. App. Div. 1990) 35

Plumbers & Steamfitters, Local 52 v. Alabama

Dep't of Envtl. Mgmt., 647 So. 2d 793 (Ala. Civ.

App. 1994) 35

Ross Incineration Servs. v. Browner, 118 F. Supp. 2d

837 (N.D. Ohio 2000) 21

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 44

Solar Turbines, Inc. v. Seif, 879 F 2d 1073 (3d Cir.

1989) 18, 30

Southern Ohio Coal Co. v. Office of Surface Mining,

Reclamation & Enforcement, 20 F.3d 1418 (6th

Cir. 1994) 21

Southern Pines Assocs. v. United States, 912 F 2d

713 (4th Cir. 1990) 21

Stone v. INS, 514 U.S. 386 (1995) 32

Sur Contra La Contaminacion v. EPA, 202 F.3d

443 (Ist Cir. 2000) 35

TVA v. Whitman, No. 00-15936, 2003 WL 21452521

(11th Cir. June 24, 2003) 18, 19

Cases—Continued:

Train v. NRDC, 421 U.S. 60 (1975)

United States Dep't of Treasury v. Fabe, 508

U.S. 491 (1993)

United States v. Mead Corp., 533 U.S. 218 (2001)

United States v. Murphy Oil USA, Inc., 155

F. Supp.2d 1117 (W.D. Wis. 2001)

Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978)

Whitman v. American Trucking Ass us, 531 U.S.

457 (2001)

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498

(1990)

U.S. Const., Due Process Clause, Amend. V

Administrative Procedure Act 5 U.S.C. 551 et seg

5 U.S.C. 701(aX1)

5 U.S. C. 701(aX2)

Clean Air Act, 42 U.S.C. §§ 7401 et seg.

§ 160-169, 42 U.S.C. 7470-7492

107(a), 42 U.S.C. 7407(a)

110, 42 U.S.C. 7410

Loa DD, U.S.C. 7410(aX2) (DiX1D)........

1104), 42 U.S.C. 74100

111(aX(4), 42 U.S.C. 7411

113(aX(5), 42 U.S.C. 74145)

113(b), 42 U.S.C. 7413(b)

113(b)(2), 42 U.S.C. 74130)

113(c), 42 U.S.C. 7413(c)

160(3), 42 U.S.C. 7470(3)

160(4), 42 U.S.C. 7470(4)

161, 42 U.S.C. 7471

163, 42 U.S.C. 7473

165, 42 U.S.C. 7475

165(aX(1), 42 U.S.C. 7475(a\(1)

165(a)(3), 42 U.S.C. 7475(aX3)

Vil

Statutes and regulation—Continued:

§ 165(aX4), 42 U.S.C. 7475(aX4) 3, 13, 23, 36

§ 165(aX8), 42 U.S.C. 7475(aX8)

§ 165(dX1), 42 U.S.C. 7475(dX(1)

§ 167, 42 U.S.C. 7477

§ 16%1), 42 U.S.C. 74791)

§ 16%3), 42 U.S.C. 747943)

§ 307(b\(1), 42 U.S.C. 7607(b\1)

§ 307(b\2), 42 U.S.C. 7607(b\2)

$§ 501-507, 42 U.S.C. 7661-7661f

Clean Water Act, 33 U.S.C. 1251 et seg.

Comprehensive Environmental Response, Compen-

sation, and Liability Act, 42 U.S.C. 9601 et seg. ...............

Resource Conservation and Recovery Act, 42

U.S.C. 6901 et seq.

18 U.S.C. 3661

42 U.S.C. 1983

40 C. F. R. 51.168

Miscellaneous:

EPA, New Source Review Workshop Manual

(Draft 1990)

57 Fed. Reg. 28,095 (1992)

58 Fed. Reg. 10,961 (1993)

63 Fed. Reg. 13,796 (1998)

65 Fed. Reg. 35,430 (2000)

H.R. Conf. Rep. No. 564, 95th Cong., Ist Sess.

(1977)

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977

H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1 (1990) ........

S. Rep. No. 127, 95th Cong., Ist Sess. (1977)

United States Sentencing Guidelines § 1B1.4

„ 2

In the Supreme Court of the United States

No. 02-658

ALASKA DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-16a) is

reported at 298 F.3d 814. A prior order of the court of ap-

peals addressing its subject matter jurisdiction (Pet. App.

17a-23a) is reported at 244 F.3d 748.

JURISDICTION

The judgment of the court of appeals was entered on July

30, 2002. The petition for a writ of certiorari was filed on Oc-

tober 25, 2002, and was granted on February 24, 2003. This

Court’s jurisdiction is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are set

forth at App., infra, la-18a.

(1)

STATEMENT

1. Under the Clean Air Act, “the States and the Federal

Government [are] partners in the struggle against air pollu-

tion.” General Motors Corp. v. United States, 496 U.S. 530,

532 (1990). The Environmental Protection Agency (EPA),

for example, establishes national ambient air quality stan-

dards (NAAQS) for certain air pollutants, and States play a

“statutory role as primary implementers of the NAAQS.”

Whitman v. American Trucking Ass’ns, 531 U.S. 457, 470

(2001); see 42 U.S.C. 7408, 7409. Each State must draft and

submit to EPA for approval a state implementation plan

(SIP) that, inter alia, provides for the attainment and main-

tenance of the NAAQS. See 42 U.S.C. 7407(a), 7410; see

Train v. NRDC, 421 U.S. 60, 93-94 n.28 (1975).

This case involves particular provisions of the Act appli-

cable to construction of major facilities in areas that are

designated as “attainment” or “unclassifiable,” i. e., areas of

the country—such as much of Alaska—where the NAAQS

for a given pollutant are satisfied or for which insufficient

data exist to know whether they have been satisfied. See

Pet. App. 3a. The key goal of the Act in such areas is to pre-

serve existing air quality, and a State’s SIP therefore must

“contain emission limitations and such other measures as

may be necessary * * * to prevent significant deterioration

of air quality” in those areas. 42 U.S.C. 7471; see 42 U.S.C.

7410(a)(2)(D)(i)(II). Under the Act’s prevention-of-signifi-

cant-deterioration—or PSD—program, no “major emitting

facility“ —i. e., no facility that would emit substantial quanti-

ties of pollutants, see 42 U.S.C. 7479(1)—may be constructed

in a clean air area unless it satisfies certain statutory re-

quirements. 42 U.S.C. 7475.

Before such a facility may be constructed, its operator

must secure a PSD permit “setting forth emission limitations

for such facility which conform to the requirements” of the

Act. 42 U.S.C. 7475(a)(1). One substantive requirement that

—— m

— — — —

- — — — — —L—ͤ — =

must be reflected in the PSD permit is that the new facility

must not “cause, or contribute to * * * air pollution” in ex-

cess of certain “maximum allowable increase[s]”—or incre-

ments—in the levels of particular pollutants in clean air ar-

eas. 42 U.S.C. 7475(a)(3) (permit requirement), 7473 (defini-

tion of increment). Another requirement is that the facility

must not cause or contribute to air pollution exceeding any

NAAQS or other “applicable emission standard or standard

of performance” under the Act. 42 U.S.C. 7475(a)(3).

To prevent significant deterioration of air quality in a

clean air area, a facility also may not “be constructed * * *

unless * * * the proposed facility is subject to the best

available control technology [BACT] for each pollutant sub-

ject to regulation under [the Act] emitted from, or which re-

sults from, such facility.” 42 U.S.C. 7475(a)(4); see Alabama

Power Co. v. Costle, 636 F.2d 823, 407 (D.C. Cir. 1979).

BACT is defined under the Act, in pertinent part, as

an emission limitation based on the maximunr degree of

reduction of each pollutant * * * emitted 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.

42 U.S.C. 7479(3). Thus, BACT is an “emission limitation”

that must be “based on the maximum degree of reduction

* * * achievable” for the facility, as determined by the

permitting agency and taking into account the specified fac-

tors.

In determining what is BACT for a given source, permit-

ting authorities commonly follow the “top-down” approach.

Pet. App. 13a (citing EPA, New Source Review Workshop

Manual (Draft 1990)). Under that approach, “the applicant

ranks all available control technologies in descending order

of control effectiveness. The most stringent technology is

BACT unless the applicant can show that it is not technically

feasible, or if energy, environmental, or economic impacts

justify a conclusion that it is not achievable.” Pet. App. 13a.

The Act directs state permitting authorities to keep EP.

informed of every PSD permit application and “of every ac-

tion related to the consideration of such permit.” 42 U.S.C.

7475(d)(1). Although EPA often offers comments to state

permitting authorities on permit applications, EPA does not

become more formally involved in PSD permit decisions in

the vast majority of instances. Two provisions of the Act,

however, authorize EPA to enforce the statutory PSD re-

quirements. Section 113(a)(5) provides that if EPA “finds

that a State is not acting in compliance with any requirement

or prohibition” of the Act “relating to the construction of

new sources or the modification of existing sources,” 42

U.S.C. 7413(a)(5), EPA may (A) “issue an order prohibiting

the construction or modification of any major stationary

source in any area to which such requirement applies,” (B)

issue an administrative penalty order,” or (C) “bring a civil

action” in federal district court for an injunction or other re-

lief. 42 U.S.C. 7413(a)(5). Section 167, which is directed

solely to the PSD program applicable to new sources in clean

air areas, provides that EPA “shall * * * take such meas-

ures, including issuance of an order, or seeking injunctive

relief, as necessary to prevent the construction or modifica-

tion of a major emitting facility which does not conform to

the requirements of” the Act specifically intended to pre-

vent significant deterioration. 42 U.S.C. 7477.

2. Teck Cominco Alaska, Inc. operates the “Red Dog

Mine” in northwest Alaska, which is the largest producer of

zine concentrates in the world. Pet. App. 3a. Many workers

are housed within its boundaries, and native Alaskans reside

in the nearby villages of Kivalina and Noatak. Id. at 4a; J. A.

166; R. 36-018, 46-001. Cominco first obtained a PSD permit

from petitioner for the mine in 1988. Pet. App. 4a; J.A. 166.

The mine produces its own electricity. In order to ensure

—

— 1 ae a

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that emissions of nitrogen oxides (NOx) from its power gen-

erators remained within permissible limits, that permit, as

later amended, included restrictions that limited the opera-

tions of the mine’s five original diesel-fired power generators

(designated MG-1 through MG-5) and one generator added

later (designated MG-6). J.A. 78-79, 166-167, 194-195.

In 1996, Cominco initiated an expansion project to in-

crease zinc production by 40%. Pet. App. 4a; R. 85-007; J.A.

167. The State of Alaska provided just under half of the

funding. R. 85-007. The project was to increase the mine’s

workforce from 406 to 476. Ibid. Because the expansion

would significantly increase emissions of air pollutants

(including up to 1,100 additional tons per year of NOx) from

the power generators, Cominco was required to apply for a

new PSD permit. Cominco submitted its application in June

1998. Pet. App. 4a; J.A. 167-169. As amended in 1999,

Cominco’s application sought permission to build a new gen-

erator (designated MG-17) to add to the six existing ones.

Pet. App. 4a; J.A. 167, 196. Cominco argued that petitioner

should determine that BACT for that generator is a technol-

ogy known as “Low NOx.” Pet. App. 4a; J. A. 84.

1 BACT review is required if modification of a particular facility would

lead to a specified increase in emissions. See R. 33-016 (Table 2.3-1 show-

ing Alaska PSD permit needed if NOx emissions will be increased by 40

tons per year or greater); 40 C.F.R. 51.166(b)(23)(i) (state SIPs must have

40-ton-per-year threshold for NOx increase). Initially, as a result of

Cominco’s planned increases in electricity generation from those

generators that would lead to increased emissions, there was

disagreement about the content of a BACT determination for MG-5 and

the need for a BACT determination for MG-1, MG-3, and MG-4. See J.A.

128-129. In October 1999, Cominco revised its proposal to install Low

NOx on those generators and thereby increase electricity production

while not increasing emissions. See J.A. 149. The revision required

Cominco to abide by the emission limitations in the pre-existing permits

for those generators. See p. 9, infra. The case now concerns only the

BACT limitation on the new generator, MG-17.

Petitioner’s staff initially disagreed with Cominco’s BACT

proposal, concluding that a different and more stringent

technology, selective catalytic reduction (SCR), should be

required as BACT. J.A. 108, 196; Pet. App. 4a. SCR is

similar to the catalytic converter technology used in auto-

mobiles. See, e.g., 65 Fed. Reg. 35,430, 35,470 nn.100-101

(2000). In May 1999, however, petitioner released a draft

PSD permit decision granting Cominco permission to build

MG-17 with Low NOx—rather than SCR—installed on it.

See Pet. App. 4a; J.A. 55-95. Purporting to follow the “top-

down” approach (see pp. 3-4, supra), petitioner acknowl-

edged that SCR would provide the most stringent level of

control, while also being “technically and economically

feasible” on MG-17. J.A. 61-62, 65, 83-84, 283-284. In

particular, petitioner noted that the costs of SCR (variously

estimated at that time to be between $1586 and $5643 per

ton of NOx removed) were “well within what [petitioner]

and EPA considerſ] economically feasible.” J. A. 84. Never-

theless, petitioner proposed to select the less effective Low

NOx as BACT for MG-17 due solely to “other considera-

tions.” J. A. 65 n. I. Those “other considerations” consisted of

Cominco’s proposal to retrofit some of its existing genera-

tors with Low NOx as well. See note 1, supra; J.A. 87-88;

Pet. App. 4a.

In July 1999, EPA, following up on comments submitted

by the National Park Service (NPS), which was concerned

about the effect of increased NOx emissions on air quality

and vegetation at Cape Krusenstern National Monument

and Noatak National Preserve, raised concerns with peti-

tioner about its draft permit decision. Pet. App. 4a-5a; J.A.

96-98, 257, 284-285. EPA pointed out that petitioner itself

had found that SCR offered “the most stringent level of con-

trol” and was “economically and technologically feasible.”

J.A. 96. And EPA reminded petitioner that “the PSD pro-

gram does not-allow the imposition of a limit that is less

stringent than BACT” on MG-17, “even if equivalent emis-

sion reductions are obtained by imposing new controls on

other emission units.” J.A. 97; see Pet. App. 5a.

After receiving EPA’s comments, petitioner issued a re-

vised draft permit decision dated September 1999. Peti-

tioner again found SCR to offer the most stringent level of

control, to be technologically feasible, and not to be elimi-

nated by consideration of environmental and energy impacts.

J.A. 107, 287. The revised decision also acknowledged that

“the emission reductions achieved by the applicant’s pro-

posal to retrofit the existing, unmodified engines * * *

cannot be used to temper the stringency of BACT” on MG-

17—.e., that BACT had to be determined for MG-17 alone,

without regard to controls petitioner might choose to place

on other generators. J.A. 111-112, 286.

The revised draft decision nonetheless continued to state

that Low NOx qualified as BACT for MG-17, purporting to

base that determination on the costs of SCR, which it now

found to be only $2100 per ton of NOx removed. Pet. App.

5a, 14a-15a; J.A. 113, 117, 286-288. The revised draft as-

serted that the costs of SCR were “significantly higher” than

those associated with “recent BACT decision(s] for similar

installations,” although petitioner acknowledged that it had

imposed BACT costs of up to “$7,000 per ton of NOx re-

moved” on other sources. J.A. 115-116; R. 29-052. The re-

vised draft hypothesized that Cominco “would probably buy

power from a rural Alaskan utility” if it did not generate its

own power and stated that the cost increase of SCR would

be “a disproportionate cost increase when viewed as an elec-

tric utility.” J.A. 116. Petitioner concluded its analysis:

Another perhaps better way to determine if the cost of

BACT is excessive, is for the applicant to present de-

tailed financial information showing its effect on the op-

eration. However, the applicant did not present this in-

formation. Therefore, no judgment can be made as to the

impact of [the costs of SCR] on the operation, profitabil-

ity, and competitiveness of the Red Dog Mine.

J.A. 116 (emphasis added).

EPA again submitted detailed comments to petitioner.

See J.A. 118-130, 288-291. EPA’s view was that petitioner’s

BACT determination for MG-17 was “clearly erroneous” and

‘not “supported by * * * available information.” J.A. 129.

EPA emphasized, for example, the complete absence of facts

establishing that “requiring Cominco to install and operate

the more effective control strategies would have any adverse

economic impacts upon Cominco specifically.” J.A. 127.

In October 1999, the parties met to discuss the pending

PSD permit. Pet. App. 5a; J.A. 292. Many outstanding is-

sues were ultimately resolved. J.A. 294. For example,

Cominco now “agreed to restrict the emission increases as-

sociated with MG-5 to avoid modification and BACT review”

of that generator. J.A. 197. Although only the validity of

petitioner’s determination of BACT for the MG-17 generator

remained in dispute, it was an issue of significance. With

SCR, the MG-17 generator would emit only 53 tons of NOx

per year. With Low NOx, MG-17 would emit 531 tons of NOx

per year—a 10-fold difference. J.A. 100, 198.

After further correspondence and discussions, see J.A.

136-140, 292-294, EPA issued a “Finding of Noncompliance

and Order” to petitioner. Pet. App. 5a, 26a-37a; J.A. 294-296.

Invoking Section 113(a)(5) of the Clean Air Act, EPA found

that petitioner would violate the requirements of the Act

and the Alaska SIP if it issued the permit as then drafted.

Pet. App. 35a; J.A. 295-296. In a cover letter, EPA explained

that petitioner’s “record simply does not support its decision

that BACT for * * * MG-17 is low NOx controls.” J. A. 150.

EPA noted that petitioner’s own analysis “indicates that

SCR is technically feasible.” J. A. 149. EPA also “d[id] not

believe that the cost-effectiveness analysis in the final tech-

nical analysis report demonstrates that the installation of

SCR is economically infeasible” and noted that the costs of

SCR “are well within the range of costs EPA has seen per-

mitting authorities nationwide accept as economically feasi-

ble for NOx control, except where there are compelling site-

specific factors that indicate otherwise.” J.A. 150. EPA

stated, however, that it remained “available to review and

consider any additional information or analyses * * * to

support a determination that SCR is not BACT.” J.A. 150,

296-297. Similarly, pursuant to Section 167 of the Act,

EPA’s order directed petitioner not to permit construction

of Cominco’s MG-17 generator “unless [petitioner] satisfacto-

rily documents why SCR is not BACT.” Pet. App. 36a.

Later that same day, and notwithstanding EPA's order,

petitioner issued a PSD permit with an emission limit on

MG-17 based on a determination that Low NOx constituted

BACT. Pet. App. 5a; J.A. 254, 297-298. Under the permit,

the pre-existing emission limitations for the existing genera-

tors MG-1 through MG-6 were “retained” unchanged. J.A.

232; see J.A. 156 (2259 tons combined total for MG-1, MG-3,

MG-4, and MG-5), 233 (limits for MG-2 and MG-6). The per-

mit included no requirement that petitioner install Low NOx

on any of those generators, although petitioner had the right

both before and after the permit decision to do so to remain

within the pre-existing emission limitations while producing

more electricity. See J.A. 139.

There was one other significant departure from the Sep-

tember 1999 revised draft permit. Compare J.A. 194-211

with R. 29-042 to 29-055. Cominco still had not submitted

any information on, and petitioner by its own admission

therefore could make “no judgment” about, SCR’s impact

“on the operation, profitability, and competitiveness of the

Red Dog Mine.” J.A. 207, 299. Nonetheless, petitioner’s

analysis purported to find “the foremost consideration to

judge economic impacts of SCR” to be “the direct cost of

SCR technology and its relationship to retaining the Mine’s

world competitiveness.” J.A. 208. Petitioner concluded that

It jo support Cominco’s Red Dog Mine Production Rate In-

crease Project, and its contributions to the region, [peti-

tioner] has rejected [SCR] controls based on excessive eco-

nomic cost—$2.9 million capital cost, with annualized costs

approaching $635,000.” J.A. 208; see J.A. 298-299.

In early February 2000, EPA issued a finding of noncom-

pliance based on petitioner’s final December 1999 permit and

BACT determination. Pet. App. 5a; J.A. 256-258, 299-300.

On the same day, invoking Sections 113(a)(5) and 167 of the

Act, EPA issued an “Administrative Order” to Cominco not

to commence construction of MG-17 until it obtained a valid

PSD permit. See Pet. App. 38a-50a; J.A. 301. In March

2000, EPA issued an “Amended Administrative Order” ac-

commodating Cominco’s request to conduct some limited,

weather-sensitive construction. See Pet. App. 5la-64a; J.A.

302. In April 2000, EPA withdrew the original December 10,

1999, Order on the ground that “after [petitioner] issued the

permit prohibited by the Order, the Order did not impose

any continuing prohibitions or obligations applicable to [peti-

tioner].“ Pet. App. 19a; J.A. 300. EPA did not, however,

withdraw the orders that generally prohibited Cominco from

doing construction work on MG-17.

3. Petitioner and Cominco filed petitions for review of

EPA’s findings of noncompliance and orders. The Ninth Cir-

cuit held that the EPA’s orders were final and that it there-

fore had jurisdiction under 42 U.S.C. 7607(b)(1). Pet. App.

18a-23a. Applying the test for finality in this Court’s deci-

sion in Bennett v. Spear, 520 U.S. 154 (1997), the court held

that EPA’s orders were its “last word” on whether Low

NOx is BACT for MG-17 and that “rights or obligations” of

the parties were determined by the orders because It he

effect of the February 8 Order [to Cominco] is to halt

construction at Cominco’s Red Dog Mine facility at a

considerable cost of both time and money to Cominco.” Pet.

App. 20a. The court also noted that legal consequences

[would] flow” if Cominco chose to continue construction

despite the orders because, if EPA instituted proceedings to

enforce its orders in district court, “Cominco and its

employees would be subject to criminal and civil penalties

for the violation of its Orders, as well as for the violation of

the [Clean Air Act].“ Id. at 21a.

On the merits, the court denied the petitions. Pet. App.

la-16a. The court noted that the enforcement powers EPA

relied upon depend on EPA’s finding either that the State is

“not acting in compliance with any requirement” of the Clean

Air Act under Section 113(a)(5) or that a proposed facility

“does not conform to the requirements of” the Act under

Section 167. Id. at 7a-8a (emphasis added) (quoting 42

U.S.C. 7413(a)(5) and 7477). The court observed that, under

the Act, a State may issue a PSD permit to construct a new

facility only if the proposed facility is “subject to the best

available control technology for each pollutant.” Id. at 8a.

The court concluded that BACT is therefore a “requirement”

of the Clean Air Act under both Section 113(a)(5) and See-

tion 167 and that EPA’s finding that petitioner had failed to

subject MG-17 to BACT authorized EPA to issue orders un-

der those Sections. Id. at 8a-9a.

Petitioner argued that the Act grants it discretion in de-

termining what constitutes BACT, because the Act defines

BACT as a limitation “based on the maximum degree of re-

duction of each pollutant * * * which the permitting

authority, on a case-by-case basis, taking into account en-

ergy, environmental, and economic impacts and other costs,

determines is achievable for [the] facility.” Pet. App. 9a

(emphasis added) (quoting 42 U.S.C. 7479(3)). The court

agreed that “the state has discretion to make BACT deter-

minations as the permitting authority.” Jd. at 10a. But it

explained that “neither Section 113(a)(5) nor Section 167

contains any exemption for [Clean Air Act] requirements

that involve the state’s exercise of discretion.” Id. at Ila.

The court concluded that “(i]t does not follow from the

placement of initial responsibility with the state permitting

authority that its decision is thereby insulated from the

oversight and enforcement authority assigned to the EPA in

other sections of the statute.” Ibid.

The court also rejected the argument that, even if EPA

has authority to reject a state BACT determination, EPA

acted arbitrarily and capriciously in this case. See Pet. App.

13a-16a. The court found that the administrative re-

cord—which “all the parties effectively agreed * * * was

adequate to resolve the issues on appeal”—supported EPA’s

finding of noncompliance. Id. at 7a. The court held that peti-

tioner’s own permit record “shows that (1) Cominco failed to

meet its burden of demonstrating that SCR was economi-

cally infeasible; and (2) [petitioner] failed to provide a rea-

soned justification for its elimination of SCR as a control op-

tion.” Id. at 16a. The court noted that petitioner’s “apparent

motivation for the elimination of SCR— appreciation for

Cominco’s contribution to the local economy”—is “uncom-

fortably reminiscent of one of the very reasons Congress

granted EPA enforcement authority—to protect states from

industry pressure to issue ill-advised permits.” Ibid.

SUMMARY OF ARGUMENT

I. The court of appeals rejected EPA’s argument that it

did not have jurisdiction in this case because EPA’s orders

were not “final action” and therefore were not subject to re-

view under 42 U.S.C. 7607(b)(1). Upon further considera-

tion, the government now believes that the court of appeals

did have jurisdiction. EPA’s orders embodied EPA's consid-

ered and final judgment on whether petitioner had ade-

quately justified its conclusion that Low NOx was the best

available control technology for the MG-17 generator. The

orders also determined legal rights and obligations, because

they in effect invalidated petitioner’s permit, pursuant to

which Cominco could have otherwise begun construction of

the MG-17 generator.

II. A. On the merits, EPA’s orders were based on

authority granted to EPA in Sections 113(a)(5) and 167 of

the Clean Air Act, 42 U.S.C. 7413(a)(5) and 7477, to prohibit

construction of a new source when a State has failed to com-

ply with a “requirement”—or the new source would not con-

form to a “requirement”—of the PSD program. The statu-

tory BACT provisions constitute such a requirement. They

mandate that permits for specified new sources (which in-

clude Cominco’s MG-17) require use of the “best available

control technology,” 42 U.S.C. 7475(a)(4), which in turn is

defined as “an emission limitation based on the maximum

degree of reduction of each pollutant” that the “permitting

authority * * * determines is achievable” for the facility,

“taking into account energy, environmental, and economic

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

B. Petitioner’s core argument is that a State complies

with the BACT provisions so long as it makes a determina-

tion—any determination—of emission levels under the ru-

bric of BACT. That contention is inconsistent with the

statutory terms, which do not merely allow a state permit-

ting authority to determine whatever limit on emissions it

wants, but instead require it to determine the “maximum

degree of reduction in each pollutant * * * achievable” for

the facility, taking into account specified factors. 42 U.S.C.

747903). If a State has not actually determined the maxi-

mum reduction” that is “achievable,” or if a State has em-

ployed an arbitrary methodology or relied on unsupported

factual premises, the State has not complied with the BACT

requirement. Although a State has substantial scope for ex-

ercising judgment and weighing competing considerations in

making a BACT determination, that scope is not unlimited.

If a State acts outside the scope of permissible judgment,

EPA may exercise the authority Congress granted it to is-

sue a stop-construction order.

Petitioner’s argument that a State has sole discretion to

determine BACT would also undermine the statutory

scheme. Congress vested EPA with enforcement authority

in order to protect national interests in ensuring compliance

with Clean Air Act requirements—interests that transcend

state boundaries. Clean Air Act requirements were imposed

in order to protect not only residents of the State that

houses a new facility, but also residents of neighboring

States into which the air pollution from that facility may mi-

grate. Moreover, Congress wanted to limit the substantial

competitive disadvantage that States that imposed reason-

able BACT and other requirements would face if other

States could adopt unreasonably permissive standards.

C. Petitioner’s other arguments that it has absolute dis-

cretion to make whatever BACT determinations it wants are

unsound. Although petitioner holds out the prospect of

state-court review of its permitting decisions, Congress in

Sections 113(a)(5) and 167 of the Act deliberately gave EPA

its own independent authority to protect the multistate in-

terests in preventing the significant deterioration of air

quality in clean-air areas. In any event, petitioner’s conces-

sion that BACT requirements in its permits are subject to

state-court review is inconsistent with its core argument

that such requirements are solely a matter of discretion for

the state permitting authority. Petitioner is also mistaken in

contending that EPA enforcement of the BACT requirement

is unnecessary because new sources must not exceed the al-

lowable increases in emission (increments) under the Clean

Air Act. Although the increment requirement sets a maxi-

mum level of pollution from new facilities in the aggregate,

the separate BACT requirement was included specifically to

ensure that emissions from each new facility are reduced to

the maximum extent achievable for the facility.

EPA review is also consistent with the statutory scheme

of cooperative federalism. Under the PSD program, state

permitting authorities have substantial latitude to exercise

their own judgment about what constitutes BACT. Con-

gress also, however, gave EPA substantive authority to en-

sure compliance with the BACT requirement where a State

acts outside that area of reasonable judgment and discretion.

It is petitioner’s view, which would deprive EPA of any sig-

nificant role in the BACT process, that violates the princi-

ples of cooperative federalism.

D. If there is any doubt about the meaning of the Clean

Air Act in this case, EPA’s construction of the Act to require

permitting authorities to make reasonable BACT determina-

tions is entitled to deference under Chevron U.S.A, Inc. v.

NRDC, 467 U.S. 837 (1984). In conferring authority on the

EPA to make findings and issue orders to ensure compliance

with the Act’s requirements, Congress ne. -ssarily conferred

authority on EPA to construe and apply the Act. EPA’s

longstanding view that the Act requires BACT determina-

tions to be reasonable was embodied in its orders and the

administrative record in this case, as well as in notice-and-

comment rulemaking and guidance to the States over the

years.

III. Petitioner argues that, if EPA does have statutory

authority to act on the basis of a State’s unreasonable BACT

determination, EPA nonetheless erred in finding that peti-

tioner’s BACT determination in this case was unreasonable.

That factbound issue falls outside the question of statutory

authority presented in the certiorari petition.

In any event, EPA correctly concluded that petitioner un-

reasonably determined that Low NOx was BACT was un-

reasonable. It is not disputed that the use of SCR on MG-17

would result in much lower emissions than would the use of

Low NOx. Petitioner conceded that SCR was feasible based

on energy and environmental impacts. Although petitioner

purported to rely on the greater costs of SCR in rejecting it

as BACT, petitioner also acknowledged that it had been pro-

vided with no information concerning the effects of those

greater costs on Cominco’s mining operation, and that ac-

cordingly “no judgment can be made as to the impact of [the

costs of SCR] on the operation, profitability, and competi-

tiveness” of the mine. J.A. 207. EPA correctly found that

petitioner’s decision to base its BACT determination on a

bare desire to save money for Cominco, unsupported by any

evidence that doing so would in turn substantially affect

Cominco’s operations at the mine or the neighboring com-

munities, was unreasonable.

ARGUMENT

I. THE COURT OF APPEALS HAD JURISDICTION IN

THIS CASE

The court of appeals held that EPA’s orders in this case

were “final action” and thus reviewable under 42 U.S.C.

7607(b)(1). See generally Harrison v. PPG Indus., Inc., 446

U.S. 578 (1980). The court rejected EPA’s arguments that

the orders were non-final. Upon further consideration, the

government now believes that the court of appeals correctly

found that it had jurisdiction in this case.

1. It is well-settled that myriad “pragmatic considera-

tions” are involved in a finality determination. See, e.g., FTC

v. Standard Oil Co., 449 U.S. 232, 239-243 (1980). The finality

of EPA’s Orders turns on two factors that were highlighted

in Bennett v. Spear, supra. Under Bennett, [a]s a general

matter,” a final agency action (1) must be one that “mark(s]

the ‘consummation’ of the agency’s decisionmaking process,”

rather than one that is “merely tentative or interlocutory

in] nature,” and (2) it “must be one by which ‘rights or obli-

gations have been determined,’ or from which ‘legal conse-

quences will flow.“ 520 U.S. at 177-178. See Whitman, 531

U.S. 477-479.

— —

— — — . —

——

The first of the Bennett conditions is satisfied here, as the

Ninth Circuit concluded. Pet. App. 20a. The second Bennett

condition is also satisfied given the nature of the orders in

this case. The Act required Cominco to obtain a permit and

be subject to BACT prior to construction. 42 U.S.C.

7475(a)(1). Absent EPA’s orders, petitioner’s permit would

have removed those obstacles to Cominco’s construction of

the MG-17 generator. The orders, however, “effectively in-

validated” the state permit. Pet. App. 18a. They precluded

Cominco from constructing the generator and from asserting

its compliance with the state permit as a defense in any en-

forcement proceeding. Moreover, as the court of appeals

noted,-once EPA issued its stop-construction orders,

Cominco was faced with the threat of penalties for their vio-

lation. Id. at 21a; see 42 U.S.C. 7413(b)(2) (civil penalties

possible for violations of a “requirement or prohibition of any

* * * order * issued * * under” the Act), 7413(c)

(criminal penalties possible for knowing violation of “any or-

der under [Section 113(a)]” or “an order under section

[167}”). Accordingly, the orders alterſed] the legal regime,”

Bennett, 520 U.S. at 178, and they constituted “final action of

the Administrator” under 42 U.S.C. 7607(b)(1).

2. The court of appeals’ jurisdictional conclusion is con-

sistent with the Sixth Circuit’s conclusion involving a similar

order in Allsteel, Inc. v. EPA, 25 F.3d 312, 315 (6th Cir.

1994) (noting that EPA’s order “directed Allsteel to stop all

construction—a new obligation, not one directly imposed by

statute”). Compare Acker v. EPA, 290 F.3d 892 (7th Cir.

2002) (order that identified past violations and directed com-

pany to comply with law in the future not final action); As-

bestec Constr. Servs., Inc. v. EPA, 849 F.2d 765 (2d Cir.

1988) (order that identified past violations of the Act, di-

2 Although the Sixth Circuit’s opinion does not specify the nature of

the federal-state dispute, the briefs in Allsteel reveal that it included the

validity of Tennessee’s BACT determination.

rected the recipient to provide certain information, and re-

quired compliance with regulations in the future not final ac-

tion); but cf. Solar Turbines, Inc. v. Seif, 879 F.2d 1073 (3d

Cir. 1989) (holding, prior to 1990 expansion of civil penalties

to cover violations of orders under 167, that pre-enforcement

review of stop-construction order was unavailable).

After the court of appeals decided this case and this Court

granted certiorari, the Eleventh Circuit in TVA v. Whitman,

No. 00-15936, 2003 WL 21452521 (June 24, 2003), expressly

disagreed with the Ninth Circuit’s jurisdictional holding in

this case. See id. at *16. The Eleventh Circuit did not

disagree with the Ninth Circuit’s conclusion that, as a

statutory matter, Section 307(b)(1), 42 U.S.C. 7607(b)(1),

would authorize pre-enforcement review of a stop-construc-

tion order such as that at issue here. The court held,

however, that the Act “is unconstitutional to the extent that

mere noncompliance with the terms of [an EPA order] can

be the sole basis for the imposition of severe civil and crimi-

nal penalties.” 2003 WL 21452521, at *19. In the court’s

view, the statutory scheme “deprives the regulated party of

a ‘reasonable opportunity to be heard and present evidence’

on the two most crucial issues: (a) whether the conduct

underlying the issuance of the [order] actually took place and

(b) whether the alleged conduct amounts to a [Clean Air Act]

violation.” Jd. at *18. The Eleventh Circuit rejected the

contention that EPA could remedy any procedural deficiency

“by voluntarily undertaking an adjudication prior to the

issuance of an [order],” finding that “there is simply no room

for administrative discretion on this [procedural] point” in

the Act. Ibid. The Eleventh Circuit concluded that EPA

orders “lack finality because they do not meet prong two of

the Bennett test.” Id. at *19.

The Eleventh Circuit’s holding is mistaken, for at least

two reasons. First, contrary to the Eleventh Circuit’s ap-

parent conclusion, see, e.g., 2003 WL 21452521, at *4, the un-

derlying merits of an EPA order are always subject to judi-

cial review—either on petition for review, as in this case or,

if not, in a subsequent action brought by EPA to enforce the

order. See 42 U.S.C. 7607(b)(2) (“Action of the Administra-

tor with respect to which review could have been obtained

under [42 U.S.C. 7607(b)(1)] shall not be subject to judicial

review in civil or criminal proceedings for enforcement.”).

The Act’s authorization of penalties for violation of EPA

“orders” is naturally read to refer only to valid orders. In

any event, such a narrowing construction would certainly be

appropriate to avoid holding a portion of the Act unconstitu-

tional.“

Second, the Eleventh Cireuit erred in holding that EPA

cannot provide for administrative procedures that would

remedy any constitutional deficiency. The mere fact that

Congress has failed to specify what procedures must be fol-

lowed before EPA may issue an order does not preclude

EPA from adopting procedures that are constitutionally

adequate. The Due Process Clause does not require that

Congress specify adequate procedures every time it entrusts

to an agency the responsibility to make a determination; the

Clause requires only that, in each case, adequate procedures

are provided. This Court has long held that an agency has

8 The Eleventh Circuit noted that EPA may issue orders under

Section 113(a)(5) “on the basis of any available information,” 42 U.S.C.

7413(a)(5), and the court appears to have believed that that language man-

dated an exceptionally lax standard of judicial review of EPA orders. See

2003 WL 2145251, at *5, *16, *18. The “any available information” clause,

however, does not alter the standard of review when EPA’s orders are

challenged; it simply means that EPA need not apply judicial rules of

evidence in determining whether there has been a violation of the Act that

warrants issuance of an order. Cf. 18 U.S.C. 3661 (“No limitation shall be

placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United

States may receive and consider for purposes of imposing an appropriate

sentence.”); Sentencing Guidelines § 1B1.4 (similar).

general authority to provide appropriate process, even when

a statute does not specify that that process must be used.

See, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519, 544 (1978) (noting “the very basic tenet of ad-

ministrative law that agencies should be free to fashion their

own rules of procedure”); Cameron v. United States, 252

U.S. 450, 460-463 (1920). The Eleventh Circuit erred in re-

jecting that principle. Moreover, neither the Due Process

Clause nor the Administrative Procedure Act requires a

formal evidentiary hearing in all circumstances, and Con-

gress contemplated that many EPA orders under the Clean

Air Act would be issued in less formal proceedings. See

PPG Indus., Inc. 446 U.S. at 587-589.

3. The Eleventh Circuit’s sole reason for holding that the

EPA order in that case was nonfinal and thus unreviewable

was that the Act’s provision for such orders to be backed by

civil and criminal penalties was unconstitutional. For the

reasons given above, the Act’s provisions for EPA orders do

not violate the Due Process Clause. Accordingly, the

Eleventh Circuit’s finality conclusion was erroneous, and the

court of appeals in this case correctly held that the EPA

orders were reviewable under Section 307(b)(1).°

4 Petitioner has not presented any question in this case about the ade-

quacy of EPA’s procedures under the Due Process Clause or the APA.

5 The Clean Air Act itself vests courts of appeals with original

jurisdiction to review certain enumerated actions of EPA and “any other

final action” it takes. 42 U.S.C. 7607(b)(1). Thus, apart from constitutional

or prudential limitations such as standing, “finality” is the only juris-

dictional inquiry under the Act. See Allsteel, 25 F.3d at 314. Other en-

vironmental statutes, such as the Clean Water Act, 33 U.S. 1251 et seq.,

and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.,

generally do not comprehensively provide for judicial review, and review

accordingly often takes place in district courts pursuant to the APA. The

APA provides that an agency action may be “final” yet still statutorily

unreviewable on other grounds, such as if the statute under which the

agency acts preeludeſs] judicial review.” 5 U.S.C. 701(a)(1). Courts have

— — . eS

II. THE CLEAN AIR ACT AUTHORIZES EPA TO IS-

SUE A STOP-CONSTRUCTION ORDER IF A

STATE’S PSD PERMIT IS BASED ON AN ARBI-

TRARY OR UNREASONED DETERMINATION OF

BEST AVAILABLE CONTROL TECHNOLOGY

Sections 113(a)(5) and 167 of the Clean Air Act, 42 U.S.C.

7413(a)(5) and 7477, both grant EPA authority to issue stop-

construction orders to enforce a “requirement” of the Act.

Both parties agree that it is a requirement of the Act that a

permitting authority determine the best available control

technology for a proposed facility and include corresponding

emission limitations in its PSD permit. EPA rested its

Orders in this case on the premise that a State fails to

conform to that requirement if it bases emission limitations

in a permit on an unreasonable BACT determination. That

conclusion is correct, and petitioner’s arguments for a

contrary interpretation—under which the Act requires per-

mitting authorities to make a BACT determination but does

not require them to do so reasonably—are mistaken.

generally found that pre-enforcement review of EPA orders under those

other environmental statutes is precluded within the meaning of the APA.

See, e. g., Southern Ohio Coal Co. v. Office of Surface Mining, Reclama-

tion & Enforcement, 20 F.3d 1418, 1426 (6th Cir. 1994); Southern Pines

Assocs. v. United States, 912 F.2d 713, 716 (4th Cir. 1990); Hoffman

Group, Inc. v. EPA, 902 F.2d 567, 568 (7th Cir. 1990); Ross Incineration

Servs. v. Browner, 118 F. Supp. 2d 837, 843-845, 847 (N.D. Ohio 2000);

Amoco Oil Co. v. EPA, 959 F. Supp. 1318, 1323-1324 (D. Colo. 1997). The

Comprehensive Environmental Response, Compensation, and Liability

Act, 42 U.S.C. 9601 et geg., contains an express bar to pre-enforcement re-

view. Cf. Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th Cir. 1977)

(finding pre-enforcement review under the Clean Air Act precluded prior

to the 1977 addition of the “any other final agency action” language to

Section 7607(b)(1)).

A. Under The Plain Language Of Sections 113(a)(5) And

167, EPA Has Authority To Prevent Construction Of A

Facility Under A Permit That Does Not Comply With

Requirements Of The Clean Air Act

“(T]he starting point in a case involving construction * *

* of a statute, is the language of the statute itself.” United

States Dep’t of Treasury v. Fabe, 508 U.S. 491, 500 (1993).

Two provisions of the Clean Air Act expressly authorized

EPA’s orders in this case.

1. Under Section 113(a)(5), “[wJhenever * * * the Ad-

ministrator finds that a State is not acting in compliance

with any requirement or prohibition of the chapter relating

to the construction of new sources or the modification of ex-

isting sources, the Administrator may * issue an order

prohibiting the construction or modification of any major

stationary source in any area to which such requirement ap-

plies.” 42 U.S.C. 7413(a)(5) (emphasis added); see 42 U.S.C.

7411(a)(4) (defining “modification”). Under that provision,

even when a State rather than EPA has authority to issue

PSD permits—and even though the State’s decision to grant

a PSD permit would be subject to judicial review in state

court—Congress granted EPA itself a substantive role in

overseeing state implementation. Cf. Pet. Br. 23 (“There are

many ‘requirements’ in the Act, including in the PSD provi-

sions, that the EPA may enforce pursuant to Sections

113(a)(5) or 167.”). Indeed, Congress expanded EPA’s over-

sight role under Section 113(a)(5) in 1990 specifically to in-

clude enforcement of the Act’s PSD requirements. See p. 32,

infra. Thus, if EPA finds that a State decision to issue a

permit does not comply with a requirement of the PSD

provisions of the Act, EPA may issue a stop-construction

order under Section 113(a)(5).

2. EPA's authority under Section 167 rests on a similar

foundation. Under Section 167, “[tJhe Administrator shall

* * * take such measures, including issuance of an order,

* * * as necessary to prevent the construction or modifica-

tion of a major emitting facility which does not conform to

the requirements of this part” of the Act. 42 U.S.C. 7477

(emphasis added). The term “this part” refers to the provi-

sions of the Act concerning prevention of significant deterio-

ration of air quality in clean air areas. See 42 U.S.C. 7470-

7492. Section 167 thus specifically gives to EPA—in addition

to the States that have permitting authority under the

Act—a substantive enforcement role with respect to con-

struction or modification of facilities in clean air areas.

B. A Permitting Authority That Has Not Reasonably De-

termined The Maximum Degree Of Reduction In Pollu-

tion Achievable For A Facility Has Not Complied With

The Act's BACT Requirement

EPA's ability to act in this case thus turns (under Section

113(a)(5)) on whether the Alaska permitting authority has

complied with the Clean Air Act’s “requirements” and (un-

der Section 167) on whether Cominco’s proposed facility

would conform to the Act’s “requirements.” Section

165(a)(4) provides that Injo major emitting facility * * *

may be constructed” in a clean air area “unless * * * the

proposed facility is subject to the best available control

technology.” 42 U.S.C. 7475(a)(4). Petitioner concedes (Br.

22) that that provision imposes a “BACT requirement” that

“a stat. issued PSD permit contain a BACT limitation.”

EPA's order to stop construction therefore was authorized

under Section 113(a)(5) if the State was “not acting in

compliance with” the statutory BACT requirement when it

issued the PSD permit, and EPA’s order was authorized

under Section 167 if Cominco’s construction of its MG-17

generator with Low NOx would “not conform to” that

requirement.

The core disagreement in this case concerns the nature of

the BACT requirement. Both parties agree that a state

permitting authority has the responsibility in the first in-

stance to determine what is the best available control tech-

nology for a given proposed facility. The government’s

submission is that the Act requires the state permitting

authority to make its BACT determination reasonably

within the parameters the statutory standards, and that,

when the state author / fails to do so, EPA may enforce the

Act’s requirements under Sections 113(a)(5) and 167.

Petitioner’s view is that the state permitting authority has

“sole discretion” to impose whatever emission limitations it

wants under the BACT label (Br. 27) and that EPA’s

authority under Sections 113(a)(5) and 167 therefore does

not include any substantive review of whether the State’s

BACT determination is reasonable or justifiable. Peti-

tioner’s position is mistaken.

1. The BACT requirement is fleshed out in a statutory

definitional provision. That provision does not merely re-

quire that a State determine the “best” emission limitation,

without further specification—a standard that, even had it

been employed, still would not necessarily mean that peti-

tioner had unreviewable discretion. See Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 411-413 (1971) (grant of

authority to administrator to determine “prudent” alterna-

tive to highway route does not grant unlimited discretion).

Rather, BACT is defined in pertinent part as

an emission limitation based on the maximum degree of

reduction of each pollutant * * *, 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 [the] facility through

application of production processes and available meth-

ods, systems, and techniques * * * for control of each

such pollutant.

42 U.S.C. 747903). Thus, a PSD permit satisfies the BACT

requirement if it provides for the “maximum degree of re-

duction of each pollutant” that “is achievable for [the] facil-

ity” through specific measures “for control of each such pol-

lutant.” That determination must “tak[e] into account en-

ergy, environmental, and economic impacts and other costs.”

The “permitting authority”—in this case, petitioner—is the

entity that must make that determination, just as it must

make all other determinations necessary to deciding whether

a proposed PSD permit would comply with the Act.

2. Petitioner’s core argument is that the statutory BACT

requirement is satisfied so long as the permitting authority

takes into account the specified factors and makes some de-

termination about emission limitations, no matter how im-

plausible. See Pet. Br. 22 (“The only ‘BACT requirement’

pertinent here is that a state-issued PSD permit contain a

BACT limitation, determined by the State ‘on a case-by-case

basis, taking into account energy, environmental, and eco-

nomie impacts and other costs.’”); id. at 27 (Congress

vestſed] the States with sole discretion to decide what con-

stitutes BACT.”) (emphasis added). In petitioner’s view,

EPA may invoke Sections 113(a)(5) and 167 only to enforce

the requirement that the state permitting authority recite

that it is determining the best available control technology

and “tak{ing] into account” the specified factors. In peti-

tioner’s view, that is all a state permitting authority must do

to satisfy the statutory BACT requirement.

Petitioner’s argument is inconsistent with the plain lan-

guage of the BACT definition. Under that definition, there

are at least two ways in which a permitting agency might

recite that it is determining BACT and taking into account

the specified factors while still failing to satisfy the statutory

BACT requirement.

a. First, the Act does not require merely that a permit-

ting agency make some determination of indeterminate con-

tent regarding desirable emission reductions. Rather, the

agency must make a determination of the “maximum degree

of reduction of each pollutant * * * achievable” by the

facility. Despite a permitting agency’s incantation of the

statutory BACT definition, the agency’s decision might

make clear that it has not actually determined the “maxi-

mum degree of reduction * * * achievable” by a facility. In

such a case, although the permitting agency has made some

determination, it has not made a determination of BACT.

For example, the permitting authority’s reasoning may

demonstrate that it applied some lower standard than the

“maximum degree of reduction * * * achievable”—perhaps

seeking only a degree of reduction that requires no new

equipment installation, the least expensive reduction in

emissions, or the like. Applying such a standard would vio-

late the statutory BACT requirement regardless of whether

the permitting agency designated it as a BACT determina-

tion.

Similarly, the state agency’s decision may make clear that

it was based on a desire to provide economic support to a

particular company or facility by relieving it of the need to

lower its emissions. Providing economic support through

expenditure of state funds or exemption from purely state-

law regulations may be a worthwhile state goal in a given

case, but a State’s decision that it wants to support an em-

ployer is not a determination of the “maximum degree of re-

duction” of pollutants “achievable” for the facility.

As is spelled out in additional detail below, see pp. 44-50,

infra, EPA objected to the permit in this case because peti-

tioner made the very kinds of errors outlined above. Peti-

tioner did find that SCR is more expensive than Low NOx.

But petitioner also acknowledged that, because Cominco

“did not present” detailed financial information about the

effect of the costs of SCR on its operations, “no judgement

can be made as to the impact [of those costs] on the opera-

tion, profitability, and competitiveness of the Red Dog

Mine.” J.A. 207. Petitioner thus had no evidence concerning

the effect of the costs of SCR on Cominco’s operations or on

— — — ñ te

the local community. Indeed, petitioner pointed to no evi-

dence supporting a conclusion that the higher costs would

have any adverse effect. As a result, petitioner was not in a

position to determine that SCR—which concededly would

assure the “maximum degree of reduction” of NOx as a

technological matter—would not be “achievable” for the MG-

17 generator. At most, petitioner could determine that it

wanted to provide additional economic “support” to the Red

Dog mine. J.A. 208. But a State may not simply choose to

support a local facility by relieving it of the requirement to

use the best available control technology to reduce pollution.

If it does so, EPA has authority under Sections 113(a)(5) and

167 to prohibit construction of the facility.

b. In addition, the permitting agency does not satisfy the

Act’s requirement that it make a genuine BACT determina-

tion based on the “maximum degree of reduction * * *

achievable” merely by reciting a finding that a particular

technology satisfies that standard, no matter how arbitrary

or unreasoned that finding is. Congress’s grant of authority

to make a BACT determination was directed toward a par-

ticular purpose of fundamental importance under the

Act preventing significant deterioration of air quality in

clean-air areas within the State and in other neighboring

States. See 42 U.S.C. 7470(3) and (4). That purpose would

not be advanced by a BACT determination that arbitrarily

evaluated the evidence before the permitting authority or

applied the statutory criteria in an arbitrary manner that

excused the applicant from installing meaningful pollution

controls. Accordingly, Congress’s grant of authority to make

BACT determinations is limited to the authority to make

reasonable BACT determinations.

This Court reached an analogous conclusion in Wilder v.

Virginia Hosp. Ass n, 496 U.S. 498 (1990). In that case,

medical care providers brought suit under 42 U.S.C. 1983 to

challenge Medicaid reimbursement rates set by a State, on

the ground that the rates violated a federal statute requiring

States to provide for payment for medicaid services “though

the use of rates * which the State finds * are rea-

sonable and adequate” to meet certain costs. 496 U.S. at

503. The Court rejected the argument that the only right

granted by the statute that was enforceable under 42 U.S.C.

1983 was “the right to compel compliance with theſ] bare

procedural requirement{]” that the State recite a finding

that its rates are reasonable. 496 U.S. at 513. Noting that

such a construction “would render the statutory require-

ment(] of findings essentially meaningless,” the Court

explained that “[ijt would make little sense for Congress to

require a State to make findings without requiring those

findings to be correct.” Id. at 514. Accordingly, the statute

imposed a meaningful requirement that could be enforced

under federal law.

Similarly here, it would make little sense to require a

state permitting agency to “determine” the best available

control technology if the agency could do so without concern

for the accuracy or statutory legitimacy of its analysis. If a

permitting agency used an arbitrary methodology or disre-

garded clear evidence of actual costs in determining what is

BACT, then the agency has not made a reasonable BACT

determination and it has not complied with the statutory

BACT requirement. That would be the case, for example, if

a permitting agency simply decided that any technology that

® The result in this case follows a fortiori from Wilder. Wilder

involved the question whether the members of a particular class were

intended to be beneficiaries of a right under a federal statute such that

they could sue to enforce that right under Section 1983. As the Court con-

cluded in Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), the de-

manding standards governing implication of private rights of action under

federal statutes apply to such uses of Section 1983 by private plaintiffs.

No such demanding standard applies to the construction of EPA’s express

authority under Sections 113(a)(5) and 167 to enforce the requirements of

the PSD provisions of the Clean Air Act.

imposes any economic cost—even one additional dollar—is

not “achievable” for a facility, even though the facility is pro-

jected to be profitable and plainly could afford a modest ad-

ditional cost for pollution control. Where, as in this case, a

permitting authority has not made a reasonable determina-

tion of what is the best available control technology under

the statutory standards, it has failed to comply with the

statutory BACT requirement, and EPA has authority under

Sections 113(a)(5) and 167 to issue a stop-construction order.

e. That does not mean that a permitting authority has no

ability to exercise judgment and to weigh competing consid-

erations when it makes a BACT determination. EPA itself

has consistently recognized that the Clean Air Act gives

state permitting authorities considerable latitude in making

such determinations.’ EPA has long taken the position that

a State with an approved SIP “assumes primary responsi-

bility for administering the PSD program,” J.A. 268 (1983

EPA guidance document), and that “permitting decisions in-

volve the exercise of judgment,” J.A. 273 (1988 EPA guid-

ance document). EPA also has recognized that “it is the state

that must make the final decision on all issues relating to the

specific permit” and that It here is no suggestion in the

Act’s * * * provisions that EPA has authority to second-

guess the state on matters that are a lawful and rational ex-

ercise of discretion properly conferred upon the state.” J.A.

281 (quoting 1993 EPA guidance document).

7 See also, e., Pet. App. 10a (“state has discretion to make BACT

determinations”); Northern Plains Res. Council v. EPA, 645 F.2d 1349,

1358-1362 (9th Cir. 1981) (affirming BACT determination because per-

mitting authority “exercised reasoned discretion”); Alabama Power, 636

F.2d at 409 (“permitting authority * may exercise reasonable dis-

cretion” in determining BACT).

8 EPA recognized that scope of state authority in this case by making

clear, for example, that petitioner could come into compliance by “satis-

factorily document{ing] why SCR is not BACT for the Wartsila diesel

generator.” Pet. App. 36a, 48a, 6la. See also J.A. 150 (EPA is “available

Nonetheless, EPA too has enforcement responsibility un-

der Sections 113(a)(5) and 167. Accordingly, EPA has con-

sistently informed the States that it will exercise its author-

ity under those provisions if a State’s “BACT determination

lis] not based on a reasoned analysis.“ J. A. 274 (1988 EPA

guidance document). See also J. A. 282 (quoting 1993 EPA

guidance document) (EPA may take action if a State has not

“met all procedural norms, considered all available control

technologies, and given a reasoned justification for the basis

of its decision.”); J.A. 281 (EPA may act “to ensure that the

state exercises its discretion within the bounds of the law.”).

It has proven to be relatively rare that a state agency has

put EPA in the position of having to exercise that authority.’

But, if it does so, EPA may exercise its authority under Sec-

tions 113(a)(5) and 167 to remedy the failure.

3. a. Petitioner’s argument that EPA has no authority to

examine the substance of a State’s BACT determination is

also inconsistent with the structure and purposes of the

Clean Air Act and, in particular, with its PSD provisions.

Congress added those provisions in 1977. Under the 1977

amendments, as the Senate Report explained,

[t]he Administrator’s role is one of monitoring State ac-

tions. States have authority to issue construction per-

mits to new major emitting facilities in clean air areas.

The Administrator thus could go to court to stop a per-

mit for activities which would exceed the increments of

pollution or which otherwise did not comply with the re-

to review and consider any additional information or analyses * * * to

support a determination that SCR is not BACT”).

There are only two other reported judicial decisions that involve

stop-construction orders because of faulty BACT determinations. See

Allsteel, supra (recital only that there was faulty PSD permit, but record

reveals that fault was in part in BACT determination); Solar Turbines,

supra.

quirements of this section, including use of best avail-

able control technology.

S. Rep. No. 127, 95th Cong., Ist Sess. 12 (1977) (emphasis

added). As is evident, legislators expressly contemplated,

without qualification, that the BACT requirement would fall

within EPA’s responsibility to “monitor[] State actions.”

Ibid. The Report even explains how EPA should exercise its

oversight role: At he Administrator should tell the States

the basis for his review. When asked, he should become in-

volved at an early date in particularly difficult permit appli-

cations so that the States and localities will know of any po-

tential differences.” Ibid. See also H.R. Conf. Rep. No.

564, 95th Cong., Ist Sess. 153 (1977) (“The Administrator

shall isswe orders and seek other action to prevent issuance

of an improper permit.”) (emphasis added).

10 Although the passage quoted in the text identifies one measure

(goling! to court”) that EPA may take under 42 U.S.C. 7477 to prevent

construction of a non-conforming facility, Section 7477 more generally

authorizes EPA to “take such measures” as are necessary, specifically

“including issuance of an order, or seeking injunctive relief.”

11 The record here shows that EPA followed this roadmap by com-

municating its concerns about Cominco’s amended application. EPA’s

prompt actions here also belie predictions by petitioner and its amici that

affirming the judgment below would necessarily allow EPA enforcement

action initiated long after construction is completed. See, e.g., Pet. Br. 35;

Nat’l Envtl. Dev. Ass'n, et al. Br. 10; N. D., et al. Br. 15. This case, which

involves pre-construction orders issued by EPA, furnishes no occasion to

consider the circumstances under which EPA might appropriately act

post-construction. Cf., ¢.g., United States v. Murphy Oil USA, Inc., 155 F.

Supp. 2d 1117, 1123 (W. D. Wis. 2001) (rejecting source operator’s reliance

on state-issued PSD permit because operator failed to submit relevant

information to permitting authority). As a matter of policy, EPA takes

account of equitable concerns in issuing orders. See J.A. 273. District

courts also may consider the equities in fashioning “appropriate relief,” 42

U.S.C. 7413(b), and EPA’s failure to act in a timely manner would in many

cases be an important equitable factor for the court to consider. 42 U.S.C.

7413(b).

The legislative history of the 1990 amendments further

confirms that Congress intended to give EPA a limited, but

nonetheless substantive and source-specific role under the

Clean Air Act. Contra Pet. Br. 33-34. Prior to 1990, EPA’s

authority under Section 113(a)(5) was limited to actions to

remedy a State’s noncompliance with a “plan provision” or

other specified provisions of the Clean Air Act, and only in

nonattainment areas. 42 U.S.C. 7413(a)(5) (1988). Under the

1990 amendments, Congress broadened Section 113(a)(5) to

encompass a State’s noncompliance with “any requirement”

pertaining to new or modified major sources, including those

located in clean air areas and therefore subject to PSD per-

mits. H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1, at 391

(1990). Petitioner’s restrictive construction would contradict

Congress’s purposeful expansion of EPA’s authority. See

Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts

to amend a statute, we presume it intends its amendment to

have real and substantial effect.”).”

b. Congress had good reason to give EPA such enforce-

ment authority. First, Congress has always recognized that,

because air pollution moves easily across state lines, the

Clean Air Act implicates interests that surpass those of any

particular State. Indeed, Congress declared in a statutory

finding that one of the purposes of preventing significant de-

terioration of air quality even in clean air areas was “to as-

sure that emissions from any source in any State will not in-

terfere with any portion of the applicable implementation

plan to prevent significant deterioration of air quality for

any other State.” 42 U.S.C. 7470(4) (emphasis added). The

House Report on the 1977 amendments that added the PSD

program discussed the extensive evidence that “{a]ir is no

respecter of political boundaries” and explained that “while

12 Also in 1990, Congress enacted an operating-permit program under

which EPA has even greater source-specific responsibilities than under

the preconstruction programs. See 42 U.S.C. 7661-7661f.

emissions may not be ‘significant’ in the area of origin, when

transported to another area and combined with pollutants

from other areas, air quality may be drastically degraded.”

H.R. Rep. No. 294, 95th Cong., Ist Sess. 135 (1977). Ac-

cordingly, Ja] policy of prevention of significant deteriora-

tion which controls a new source’s emissions to the mayimum

extent practicable will help minimize the transport and

buildup of pollutants from one area to another.” Ibid. To

accomplish that goal, Congress did not give each individual

State carte blanche to include whatever emissions limita-

tions it wished in PSD permits, but instead required those

limitations to be based on the “maximum degree of reduc-

tion in each pollutant” that is “achievable,” 42 U.S.C. 717903)

(emphasis added). And it gave EPA enforcement authority

in Sections 113(a)(5) and 167 to protect the national interests

that extend beyond those of any particular State. Compare

Arkansas v. Oklahoma, 503 U.S. 91, 105-107 (1992).

Second, Congress intended that there be a level piaying

field among the States. The House Report on the 1977

amendments explained that “[t]here exists a strong incen-

tive * * * for industry to ‘shop around’ for States or locali-

ties with large clean air resources and weak pollution control

standards.” H.R. Rep. No. 294, supra, at 133. An important

congressional purpose in enacting the PSD pro-

gram—including its BACT requirement—was to limit the

“substantial competitive disadvantage” that could be faced

by other States:

Without national guidelines for the prevention of signifi-

cant deterioration a State deciding to protect its clean air

resources will face a double threat. The prospect is very

real that such a State would lose existing industrial

plants to more permissive States. But additionaliy the

State will likely become the target of ‘economic-envi-

ronmental blackmail’ from new industrial plants that will

play one State off against another with threats to locate

in whichever State adopts the most permissive pollution

controls. In other words, without national guidance on

prevention of significant deterioration, the very States

demonstrating a concern for preserving existing clean air

seriously risk having their economic base undermined.

Id. at 134. Congress therefore granted EPA authority to en-

sure that BACT decisions were justifiable.

C. Fetitioner’s Remaining Arguments That A BACT De-

termination Is An Entirely Subjective Or Discretionary

Decision That Is Not Subject To Review Are Mistaken

1. Petitioner argues that its selection of BACT cannot be

reviewed by EPA because Idletermining the ‘best’ control

technclogy is like asking different people to pick the ‘best’

car,” and “[sJubstituting one decisionmaker for another may

yield a different result, but not in any sense a more ‘correct’

one.” Pet. Br. 24. In petitioner’s view, “[bJecause there is no

‘correct’ BACT determination for any particular source, the

EPA cannot conclude that a State failed to include the ‘cor-

rect’ BACT limitation in a PSD permit.” Id. at 24-25.

Petitioner’s claim that there is no “correct” BACT deter-

mination for a particular source may or may not be right, de-

pending on the facts. In this case, for example, it appears

that both petitioner and EPA would agree that there are no

more than two genuine candidates for BACT—Low NOx

and SCR. Depending on the technology involved, there will

likely be cases in which there is only one possibility and

other cases in which there are several more.

In any event, insofar as petitioner’s submission is that a

state agency’s BACT determination can never be said to be

correc: or incorrect, petitioner's own argument that its

BACT determination is subject to review in state court con-

tradicts that submission. According to petitioner (Br. 35),

EPA or any other person could, “if it believed that the State

had failed to adequately justify its final permit decision,

challenge that decision through the State’s [judicial] review

process.” Indeed, petitioner argues that “the need [for EPA]

to correct ‘unreasoned’ state determinations * is hardly

compelling, given the availability of state administrative and

judicial review addressed to just that possibility.” Jd. at 36.

Petitioner’s insistence that there could be state-court re-

view of a BACT determination is at war with its core conten-

tion that the determination of the best available control

technology is no more ascertainable than an individual’s per-

sonal taste for one car over another. If a BACT determina-

tion contains the degree of unfettered discretion that peti-

tioner asserts, then state-court review of the determination

would also be doomed. Cf. Heckler v. Chaney, 470 U.S. 821,

830 (1985) (“[I]f no judicially manageable standards are

available for judging how and when an agency should exer-

cise its discretion, then it is impossible to evaluate agency

action for ‘abuse of discretion.’”). The prospect of state judi-

cial review that petitioner holds out would be a chimera. In

fact, however, a number of federal and state courts have re-

viewed BACT determinations that were made by EPA as

permitting authority and by state agencies, and none has

ever suggested that the matter was altogether committed to

the permitting authority’s discretion by law and therefore

unreviewable. Cf. 5 U.S.C. 701(a)(2)."

Thus, petitioner is correct when it argues that a BACT

determination can be arbitrary or otherwise contrary to law

and hence subject to review by another body (state court,

federal court, or EPA), and petitioner is incorrect when it

13 See Northern Plains, 645 F.2d at 1350-1352, 1358-1362 (EPA-issued

permit); Sur Contra La Contaminacion v. EPA, 202 F.3d 443, 418 (Ist

Cir. 2000) (EPA as permitting authority); Citizens for Clean Air v. EPA,

959 F.2d 839 (9th Cir. 1992) (EPA as permitting authority, with State

agency as delegatee); Plumbers & Steamfitters, Local 52 v. Alabama

Dep't of Envtl. Mgmt., 647 So. 2d 793 (Ala. Civ. App. 1994) (state

permitting authority); In re Pennsauken Solid Waste Mgmt. Auth., 569

A.2d 826 (N.J. Super. Ct. App. Div. 1990) (EPA as permitting autnority,

with state agency having been delegated some authority).

argues to the contrary that the determination of BACT is so

subjective, discretionary, or indeterminate that it can never

be said to be correct or incorrect. Congress anchored the

BACT requirement in terms—“best available,” “maximum

degree of reduction * * * achievable,” “production proc-

esses” and “techniques * * * for control,” etc.—that impose

substantive limitations on a permitting authority. If a state

permitting authority applies those terms in an unjustifiable

fashion, EPA may invoke-Sections 113(a)(5) and 167.

2. Petitioner’s claim that a determination of BACT is en-

tirely subjective or discretionary is also based on a faulty

understanding of the relationship among the various re-

quirements of the PSD program. To obtain a PSD permit,

the owner of a proposed facility must demonstrate that its

emissions will not “cause, or contribute to” emissions in ex-

cess of an “increment”—a “maximum allowable increase or

maximum allowable concentration for any pollutant.” 42

U.S.C. 7475(a)(3). That “increment” requirement is inde-

pendent of the requirement that the facility be “subject to

the best available control technology for each pollutant.” 42

U.S.C. 7475(a)(4). Accordingly, even if a proposed facility

will not cause emissions in excess of the increments—indeed,

even if all new facilities in the State will indisputably not

cause emissions in excess of the increments—the state

agency must still determine what is the “maximum degree of

reduction of each pollutant * * * achievable” for each indi-

vidual facility and limit its emissions accordingly.

The increment provisions of the Act do place an overall

limit on the number and types of permits a State can grant in

the aggregate. But, contrary to petitioner’s argument that a

State may determine BACT simply by dividing up the allow-

able increments among facilities as it sees fit, see Pet. Br. 17,

24, compliance with the overall increment limitations does

not establish that the State has satisfied the separate BAC T

requirement for each facility.“

3. Similarly unsupportive of petitioner’s restrictive

reading of EPA’s oversight authority is Section 165(a)(8) of

the Clean Air Act. See Pet. Br. 25. That provision contains

another PSD permit requirement, one with limited ay plica-

bility to “a source which proposes to construct in a class III

area”—a classification that no State has ever used. 42

U.S.C. 7475(a)(8). That Congress required EPA affirma-

tively to “approve[] the determination” of BACT in a permit

for that discrete subset of new sources (i. e., sources in Class

III areas that pollute in excess of the applicable increment

for Class II areas) before the permit becomes effective does

not mean it intended to bar EPA oversight of BACT

determinations affecting all other clean air areas. Rather, it

was logical for Congress to provide EPA with a general

oversight role with respect to PSD permits while at the

same time to increase the level of oversight, through a

requirement of prior approval, in the special circumstances

in Section 165(a)(8).

4. Petitioner contends (Br. 27) that precluding any sub-

stantive EPA review of a State’s BACT determination

would carry through the “basic division of responsibilities”

between the federal and state governments that this Court

4 Petitioner errs in arguing that BACT determinations are

categorically different from “objective” decisions about whether a facility

will satisfy the increments. Nearly every part of a PSD permit decision

involves the exercise of sometimes complex judgment on the part of the

permitting authority, such as the determination of whether emissions

from the new source would “cause, or contribute” to pollution in excess of

the applicable increment. 42 U.S.C. 7475(a)(3); see 42 U.S.C. 74100)

(owner of facility must show “to the satisfaction of the permitting

authority” that facility will satisfy performance standards, including

increments). Yet it is uncontested that “EPA has authority under the

[Act] to prevent or to correct a violation of the increments.” Alabama

Power, 636 F. ad at 361; Pet. Br. 25.

recognized in Train. That case concerned the limits on a

State’s authority under the Clean Air Act to fashion an im-

plementation plan (SIP) to reach the national ambient air

quality standards that EPA had set. The Court explained

that t he Act gives the [EPA] no authority to question the

wisdom of a State’s choices of emission limitations [in a SIP]

if they are part of a plan which satisfies the [Act’s] stan-

dards.” 421 U.S. at 79. Petitioner argues that a similar prin-

ciple should grant States “sole discretion” (Br. 27) to deter-

mine BACT for a facility.

Even on its own terms, Train does not support peti-

tioner’s argument. Train recognized that, although States

have a primary role in determining how to satisfy national

ambient air quality standards, the EPA retains “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.” 421 U.S. at

79. It is just such a secondary, backstop role that EPA has

played in this case. Cf. id. at 93-94 n.28 (noting that Con-

gress “charged [EPA] with the administration of the Act{]

and made [it] ultimately responsible for the attainment and

maintenance of the national standards”). That scheme is in

keeping with the plan of “cooperative federalism,” New York

v. United States, 505 U.S. 144, 167-168 (1992), that Congress

put in place in the Clean Air Act. Indeed, it is petitioner’s

view, which would deprive EPA of any significant role in the

BACT process, that violates the principles of cooperative

federalism embodied in the Act.

In any event, Train addressed the provisions of the Act

concerning state plans for implementing national ambient air

quality standards set by EPA and EPA’s ability to review

such plans. See 42 U.S.C. 7410(a)(2). In that context, Con-

gress gave the States substantial discretion to develop their

own mix of emission limitations to meet the EPA-specified

national standards in light of the States’ own “particular

situation{s],” 421 U.S. at 79, while at the same time granting

EPA authority to reject a state plan if the State has acted

outside the range of discretion accorded it by proposing a

plan that does not meet the national standards. This case

concerns entirely different, source-specific requirements of

the Act that were added in 1977, after Train, and bear no

similarity in wording, structure, or context to the provisions

at issue in Train. Nonetheless, the principles of cooperative

federalism play out here as well. In the PSD program,

Congress granted the States substantial latitude to exercise

the judgment necessary to determine BACT under the

governing standards in the Act, while also vesting EPA with

authority in Section 113(a)(5) and Section 167 (which was

especially directed toward the PSD program) to enforce the

BACT requirement in the unusual case in which a State acts

outside the range of permissible judgments. r

5. Finally, petitioner argues (Br. 36) that EPA’s exercise

of authority in this case would “improperly shiftſ] the burden

of persuasion from the EPA to the States,” because federal-

court review of whether EPA’s action is supportable will re-

place state-court review of whether petitioner’s decision was

supportable. Petitioner’s quarrel, however, is not with

EPA’s authority in this case, but with Congress’s decision to

enact Sections 113(a)(5) and 167, and thereby to vest EPA

with oversight authority in cases in which a State has failed

to comply with the Act’s requirements. It naturally follows

from those provisions that there will be at least some cases

in which a state permitting authority’s failure to comply with

the requirements of the Act will be potentially subject to

several alternative avenues of review: (a) review in state

court, (b) exercise by EPA of its authority under Sections

113(a)(5) and 167 to issue a stop-construction order, followed

by federal court review of EPA’s action, or (e) an EPA suit

for injunctive relief directly in federal court under those

same provisions. Congress’s enactment of Sections 113(a)(5)

and 167 demonstrates that it specifically intended the latter

two forms of review, and petitioner’s complaints about those

features of the Act should be addressed to Congress.

Petitioner itself acknowledges that such parallel avenues

of review properly may take place under Sections 113(a)(5)

and 167. Petitioner notes that there are “many [Clean Air

Act] requirements, including in the PSD provisions, that the

EPA may enforce pursuant to Sections 113(a)(5) or 167.”

Pet. Br. 23. It is common ground that EPA may act, for ex-

ample, if “the State issued a permit allowing emissions to ex-

ceed available increments,” see Pet. Br. 25, even though de-

cisions about whether a facility will exceed the increments

may involve complex and controversial judgment calls. Peti-

tioner thus acknowledges that in such a case, the state per-

mitting agency’s permit would be reviewable, as here, in al-

ternative ways: either by judicial review in state court, or by

EPA’s exercise of its independent enforcement responsibil-

ity. If such a scheme is workable in the case of a state per-

mit that allows emissions in excess of the allowable incre-

ments, it is equally workable here. Nor is it difficult for a

federal court, reviewing an EPA order, to take into account

that the state permitting authority retains discretion and

that EPA’s action may be sustained only if its determination

that the state agency acted outside its zone of reasonable

discretion is supported. See Pet. App. 10a; cf. Air Line Pi-

lots Ass’n v. ONeill, 499 U.S. 65, 78 (1991) (courts must rec-

ognize “wide range of reasonableness” within which unions

act in evaluating certain duty of fair representation claims).

D. The Court Should Defer To EPA's Interpretation That

It Is A “Requirement” Of The Clean Air Act That States

Make Reasonable BACT Determinations

If there is any doubt about the meaning of the Clean Air

Act in this case, EPA’s construction of the Act to require

permitting authorities to make reasonable BACT determina-

tions is entitled to deference under Chevron U.S.A, Inc. v.

NR DC, 467 U.S. 837 (1984). .

1. This Court has “recognized a very good indicator of

delegation meriting Chevron treatment in express congres-

sional authorizations to engage in the process of * * . adju-

dication that produces regulations or rulings for which def-

erence is claimed.” United States v. Mead Corp., 533 U.S.

218, 229 (2001). Just such a delegation is at issue here. EPA

acted in this case pursuant to the express conferral of

authority in Sections 113(a)(5) and 167 to make findings and

issue orders when a State fails to “act[] in compliance with

any requirement” of the Act, 42 U.S.C. 7413(a)(5), or a facil-

ity fails to “conform to the requirements of” the PSD pro-

gram, 42 U.S.C. 7477. Indeed, Congress provided that

States must transmit copies of PSD permit applicaticns to

EPA “and provide notice to [EPA] of every action related to

the consideration of such permit,” 42 U.S.C. 7475(d)(1), in

part so that EPA may effectively exercise its authorit y un-

der Sections 113(a)(5) and 167. Congress necessarily in-

tended that EPA would have to construe and apply the

Clean Air Act in taking action under those express delega-

tions, and EPA’s construction of the Clean Air Act underly-

ing the orders is therefore entitled to Chevron deference.

Moreover, as explained above, see pp. 16-17, supra, EPA's

orders in this case have “the force of law,” a factor that this

Court has found to support Chevron deference for agency

interpretations. Christensen v. Harris County, 529 U.S. 576,

587 (2000); see Mead, 533 U.S. at 230. Those orders are not

analogous to “interpretations contained in policy a en

agency manuals, and enforcement guidelines” that “are be-

yond the Chevron pale.” Mead, 533 U.S. at 234. .

2. EPA’s construction of the Clean Air Act to require

permitting authorities not merely to make some BACT de-

termination, but also to make reasonable BACT determina-

tions, was embodied in the orders in this case. In those or-

ders, EPA invoked Sections 113(a)(5) and 167 as the sources

of its authority,” and the orders were based on the premise

that a State’s BACT determination must be reasonable and

supported by the record. See J.A. 150 ( Petitioner's] record

simply does not support its decision that BACT for * * *

MG-17 is low NOx controls rather than SCR.”). Addition-

ally, the administrative record here is replete with EPA’s

interpretation of the scope of Sections 113(a)(5) and 167 as

granting EPA authority to enforce the statutory BACT re-

quirement when state permitting authorities make arbitrary

or unreasoned BACT determinations. J.A. 137, 148-149, 261-

262, 292-293, 295-296, 302. Accordingly, EPA’s construction

of the Act in these orders to require that BACT determina-

tions be reasonable is entitled to Chevron deference.

3. Other factors that this Court has discussed in deciding

whether an agency’s interpretation of a statute is entitled to

Chevron deference are also present here. EPA’s position is

“longstanding” and reflects a “careful consideration * * *

over a long period of time,” Barnhart v. Walton, 122 S. Ct.

1265, 1270, 1272 (2002), and it has remained “consistent{],”

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1998).

EPA guidance documents dating from as long ago as 1983

reflect. the same basic interpretation as the Agency em-

ployed here. See p. 29, supra. Moreover, EPA has pre-

sented that same interpretation in notice-and-comment

rulemaking proceedings approving various States’ PSD pro-

grams. See 57 Fed. Reg. 28,095 (1992); 58 Fed. Reg. 10,961

(1993); 63 Fed. Reg. 13,796 (1998). For example, in re-

sponding to comments that Virginia should not receive

EPA’s approval to run a PSD program, EPA assured the

public that “it has a responsibility to insure that all States

properly implement their preconstruction permitting pro-

1 Pet. App. 26a, 29a-30a, 35a-36a (J 1-2, 19-20, 46-47); id. at 38a, 41a-

42a, 47a, 49a ( 1-2, 18-19, 42, 48-50); id. at 5 la, 54a-55a, 60a, 62a (TF 1-2,

18-19, 42, 48, 51-52).

grams.” Id. at 13,796. At the same time, however, EPA re-

iterated the need to accord appropriate deference to the

States: “EPA may not intrude upon the significant discretion

granted to states * * * and will not ‘second guess’ state de-

cisions.” Id. at 13,797. As EPA noted, it “will review the

process followed by the permitting authority in determining

[BACT] * * * toensure * * * any determination * * *

was made on reasonable grounds properly supported on the

record.” Ibid.

4. Finally, the Agency’s interpretation addresses an is-

sue within its expertise and one with “importance * * * to

administration of the statute.” Barnhart, 122 S. Ct. at 1272.

The question whether a State’s determinations of the best

available control technology for new facilities are subject to

EPA oversight is not only of great importance to residents

of the State itself. It also is of substantial importance to

residents of neighboring States that may suffer from in-

creased air pollution, and still other States that must com-

pete for new facilities with a State that has adopted an arbi-

trarily lenient standard for BACT. If there is any doubt

whether the Clean Air Act requires that a State make its

BACT determination reasonably, EPA’s construction of the

Act to encompass that requirement should be eonelusive.“

16 This Court has made clear that development of an agency’s views in

a formal rulemaking proceeding is not necessary for Chevron deference.

See, e., Edelman v. Lynchburg Coll., 122 8. Ct. 1145, 1150 (2002); Mead,

533 U.S. at 231. Nor, in the absence of rulemaking, is a formal adjudica-

tion a prerequisite to Chevron deference. See id. at 231-232 & n. 18

(discussing Nations Bank v. Variable Annuity Life Ins. Co., 513 U S. 251,

256-257 (1995). Formal adjudication under 5 U.S.C. 554 and 556 is de-

signed to guarantee certain procedures for the determination of f1cts in

particular types of cases; it does not have a direct bearing on how an

agency interprets applicable law. See also Martin v. OSHRC, 499 U.S.

144, 156-157 (1991) (according deference to interpretation reflected in

administrative complaint). Under the Clean Air Act, Congress has con-

templated that EPA will render decisions on numerous issues without a

III. THE COURT OF APPEALS CORRECTLY SUS-

TAINED EPA’S CONCLUSION THAT PETITIONER

— 4 AN UNREASONABLE BAC T DETERMINA-

A. Petitioner argues (Br. 39-48) that even if EPA has

statutory authority to issue a stop-construction order based

on a state permit’s failure to comply with BACT, it erred in

doing so in this case. That issue falls outside the question of

og construction presented in the certiorari petition

et. i):

Whether the Ninth Circuit erred in upholding the EPA’s

assertion of authority to second-guess a permitting deci-

sion made by the State of Alaska—which had been dele-

gated permitting authority under the Clean Air Act, 42

U S.C. §§ 7401 et seg.—in conflict with decisions of this

Court and other federal courts of appeals establishing

the division of federal-state jurisdiction under the Act

and similar statutory programs.

The petition fairly poses the question whether EPA has

statutory authority under Sections 113(a)(5) and 167 to re-

view the substance of state BACT determinations and to act

accordingly. The petition does not, however, present any

question concerning whether, if EPA does have such

authority, it was properly exercised in this case. Although

the petition later, in a single sentence in the “Statement,”

mentions that the court of appeals “went on to hold that the

EPA’s issuance of the orders [in this case] was not arbitrary

or capricious,” Pet. 12, it contains no further mention of that

point. Moreover, it could not fairly be said that EPA’s

analysis of the particular factual record in this case is “in

formal adjudication. See PPG Indus., 446 U.S. at 587-589. But even if

EPA’s interpretation were ineligible for Chevron-level deference, it has

the “power to persuade” under Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944), because of the Agency’s “thoroughness,” “validity of * * * rea-

soning,” and “consistency.”

— — ͤ —œZàqWà242⏑ĩ᷑—

conflict with decisions of this Court and other federal courts

of appeals establishing the division of federal-state jurisdic-

tion under the Act and similar statutory programs.” Pet. i.

Accordingly, the question whether EPA’s orders in this par-

ticular case were adequately supported by the record is not

fairly included in the question presented and should not be

addressed by this Court. Lexecon, Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 42 n.5 (1998).

B. In any event, EPA properly found that petitioner had

not reasonably justified its determination that Low NOx was

the best available control technology for MG-17. See Pet.

App. 18a-16a.

1. The record is uncontradicted that SCR “is the most

stringent control technology available for large diesel-fired

generators,” J.A. 80, and requiring it would result in “the

maximum degree of reduction of” nitrogen oxide. 42 U.S.C.

74793). With SCR, MG-17 would emit only 53 tons of NOx

per year. J. A. 198. It would emit 10 times that level—531

tons per year—under a permit that allowed Low NOx. Ibid.

Petitioner asserts that, “because Cominco had agreed to

install Low NOx on all its generators,” petitioner’s “permit

decision was expected to result in lower overall NOx emis-

sions than would occur if SCR * * * were installed on only

the MG-17 generator.” Pet. Br. 13; see also id. at 4, 42 n.12;

Cominco Br. 4; North Dakota, et al. Amicus Br. 14. That

contention is mistaken, and it is inconsistent with the con-

clusions that petitioner itself reached in issuing the permit.

First, petitioner concluded in its Final Technical Report

that, Jolf the Wartsila generators at the Red Dog Mine, only

unit MG-17 requires BACT,” J.A. 232, and whatever low

emission parts Cominco may install on “existing, unmodified

engines * * * is not a consideration of the BACT review.”

J.A. 199 (emphasis added); see also J.A. 111-112 (same).

That conclusion was correct. The plain terms of the Clean

Air Act require that a State determine and apply the best

available control technology for each “major emitting facil-

ity” that is “constructed,” 42 U.S.C. 7475(a)(1). Neither a fa-

cility owner nor a State may avoid the BACT requirement

for a new facility by arguing that some other control tech-

nology will be used on some other facility.

Second, the permit issued by petitioner plainly allows

much greater emissions of nitrogen oxide than a permit re-

quiring the use of SCR on the MG-17 generator. The permit

“retain(ed}” the limit on nitrogen oxide emissions from the

pre-existing generators that had already been imposed in

the operating permits for those generators. J.A. 239. In-

deed, those pre-existing limits had to be retained, without

regard to any BACT determination for any generator, old or

new, so that the facility would not exceed the applicable in-

crements—a requirement that petitioner concedes to be

binding on the States and enforceable by EPA. J. A. 237.

Therefore, Cominco must ensure that the existing genera-

tors remain within the pre-existing limits, regardless of what

pollution control device—Low NOx or SCR—is required on

MG-17. Cominco may of course choose to install Low NOx

on the existing generators in order to increase electricity

production without exceeding the pre-existing limits on

emissions of nitrogen oxide. Nothing in the permit, how-

ever, requires Cominco to do so, much less to reduce their

overall emissions to offset added emissions from MG-17. As

a result, petitioner’s determination that Cominco may use

Low NOx rather than SCR on MG-17 plainly allows sub-

stantially greater emissions from the Red Dog Mine.

2. There is no suggestion in the record that petitioner

should have rejected SCR on account of “energy” or “envi-

ronmental * * impacts.“ 42 U.S.C. 7479(8). See, e. g., J. A.

200-203 (rejecting Cominco’s arguments concerning such im-

pacts); see also Pet. Br. 40 (“ADEC discounted Cominco’s

claim that energy or environmental impacts warranted

eliminating SCR.”). In fact, petitioner specifically rejected

Cominco’s efforts to “reduce the stringency of BACT” by re-

liance on the mine’s compliance with other air quality stan-

dards, J.A. 200, and even found that “it is likely that the NOx

emission reductions resulting from [SCR] will improve

workplace conditions.” J.A. 201.

3. Nor does the record on which petitioner’s decision was

based reveal any reasoned basis to conclude that a limitation

based on SCR was not “achievable for such facility” due to

“economic impacts and other costs.” 42 U.S.C. 7479(8).

Petitioner and its engineer initially concluded that SCR was

“economically feasible” for MG-17. J.A. 65. Further evincing

SCR’s economic feasibility is the world-wide pervasiveness

of that technology. See, eg., J.A. 102 (“SCR has been

installed on similar diesel-fired engines throughout the

world.”); J.A. 234 (“The Department has permitted projects

{in Alaska] requiring SCR.”); J. A. 289-291."

Petitioner asserts that its BACT determination was cor-

rect because the cost of SCR—approximately $2,100 per ton

of NOx removed, see J.A. 204—was higher than the cost of

controls in recent BACT determinations it had made of $0 to

$936 per ton of NOx removed. Pet. Br. 40. See J.A. 205-206.

Not even Cominco, however, had placed reliance on those

“installations,” see R. 44- 011, 45-034, 45-043, and petitioner

itself commented that “[t]he cited examples of engines per-

mitted in Alaska without requiring SCR are not valid exam-

17 Because SCR is so pervasive, including in cold climates, petitioner’s

selected excerpts (see Br. 44-45) from EPA’s New Source Review

Workshop Manual do not help its cause. A fair reading of the cited

portion of the guidance is that the more a “control alternative” is “effec-

tively employed in the same source category,” the harder it is generally to

eliminate that level of control on the basis of an “economic impact.” R. 71-

115. That reading is confirmed by petitioner’s own acknowledgment that

Cominco bore the burden of showing “compelling and atypical energy,

environmental, or economic * * * circumstances specific to a facility

that] constrain it from using I] the most effective technology a burden

that Cominco failed to discharge. J.A. 178.

ples as they either took place over 18 months ago or were

not used for similar purposes.” J.A. 233-234; see also R. 21-

018 (None of the decisions cited by Cominco are similar to

the case at hand.”).

Moreover, even if the “recent BACT decisions” cited by

petitioner had any instructive value,” the record does not

support petitioner’s dismissal of higher-cost examples within

the State. J.A. 115, 205. As petitioner itself noted with re-

spect to a prior permit decision, “the Yukon Pacific Corpora-

tion permit included a gas/diesel-fired boiler and heaters

with costs at $2,900 and $7,000, respectively, per ton of NOx

removed,” and the estimated cost of SCR for Cominco falls

well below either figure. R. 21-019."

Ultimately, petitioner rested its BACT analysis on an

analogy to rural electric utilities in Alaska. Petitioner stated

that “[iJf [Cominco] did not have a powerhouse, it would

probably buy power from a rural Alaska utility.” J.A. 206.

Petitioner reasoned that, because what it termed a “cursory

review” revealed that the average cost of electricity for such

rural utilities is 15 cents per kilowatt hour and the use of

SCR would increase that by 3 cents, SCR “would be equiva-

lent to a 20% increase in the electric rate of the facility.”

J.A. 206. Petitioner concluded that “this is a disproportion-

ate cost increase when viewed as an electric utility.” J.A.

206 (emphasis added). Cominco, however, is not a rural util-

18 Because the record does not reveal the dates of those BACT

decisions, it is not clear whether they have any precedential relevance.

See R. 22-031 to 22-033. As petitioner itself noted, “18 months is the time-

frame over which BACT decisions are rendered stale under both state and

federal PSD regulations.” R. 21-014. Relying on other BACT decisions

standing alone is also problematic because, as both EPA and petitioner

pointed out, cost-effectiveness is not always calculated or published. See

J. A. 127, 205.

10 While this analysis is from an internal memorandum, petitioner

incorporated that analysis by reference into its final response to com-

ments. See J.A. 236 n.31.

ity and it does not compete with rural utilities. Moreover,

the economic impact of a requirement that a rural Alaska

utility use SCR on a new generator could be far different

than the economic impact of a requirement that Cominco do

so on the new generator at its mine. Indeed, no facts exist to

suggest that the “economic impact[]” of the incrementally

higher cost of SCR on the world’s largest producer of zinc

concentrates would be anything like its impact on a rural,

non-profit utility that must pass costs on to a small base of

individual consumers. 42 U.S.C. 7479(8); J. A. 116, 207.

4. The best demonstration that petitioner unreasonably

selected Low NOx over SCR for MG-17 is found in its own

final BACT determination:

The Red Dog Mine plays a unique and continuing impact

on the economic diversity of this region. Therefore, the

Department has chosen to consider the direct cost of

SCR technology and its relationship to retaining the

Mine’s world competitiveness as it relates to community

socioeconomic impacts for the foremost consideration to

judge economic impacts of SCR. To support Cominco’s

Red Dog Mine Production Rate Increase Project, and its

contributions to the region, the Department has rejected

Selective Catalytic Reduction controls based on exces-

sive economic cost * * *.

J.A. 208. Assuming that “retaining the Mine’s world com-

petitiveness as it relates to community socioeconomic im-

pacts” could properly be the “foremost consideration” in pe-

titioner’s BACT determination, the record provides nc sup-

port whatever for the proposition that requiring the use of

SCR would either affect the “Mine’s world competitiveness”

or have significant “community socioeconomic impacts.” Pe-

titioner acknowledged that, although the “better way to de-

termine if the cost of BACT is excessive” would be “for the

applicant to present detailed financial information showing

its effect on the operation,” Cominco “did not present this

information.” J.A. 207. Petitioner therefore acknowledged

that “no judgment can be made as to the impact of [the costs

of SCR] on the operation, profitability, and competitiveness

of the Red Dog Mine.” J.A. 207.” If it was impossible to

make a judgment about the effect of requiring SCR on the

“operation, profitability, and competitiveness” of the mine, it

was also impossible to make a resulting judgment about its

effect on the mine’s “world competitiveness” or local “socio-

economic impact(].” J. A. 207. Petitioner could not possibly

have articulated a “rational connection between the facts

found and the choice made” because Cominco did not provide

the requisite “facts” to depart from the “maximum degree of

[NOx] reduction.” 42 U.S.C. 7479(3); Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983) (ei-

tation omitted).

As the court of appeals appropriately observed, peti-

tioner’s BACT decision underscores one of the reasons why

Congress intended EPA to have oversight authority-—“to

protect states from industry pressure to issue ill-advised

permits.” Pet. App. 16a. Based on this “available informa-

tion” from the record, 42 U.S.C. 7413(a)(5), EPA acted rea-

sonably in issuing the finding of noncompliance to petitioner

and the administrative orders to Cominco to prevent the

construction of a major new source of air pollution.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

2 Petitioner cannot now suggest that it considered Cominco’s bare

assertion of an impact to be sufficient (Pet. Br. 41); it contemporaneously

stressed an inability “to verify [the] claim.” R. 22-002. Additionally, while

the Red Dog Mine is an important employer in the region (Pet. Br. 9, 10,

46), there is no record evidence that requiring SCR would compromise

even a single job.

ROBERT E. FABRICANT

General Counsel

CAROL S. HOLMES

JULIANE R.B. MATTHEWS

Attorneys

Environmental Protection

Agency

JULY 2003

THEODORE B. OLSON

Solicitor General

KELLY A. JOHNSON

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor Generul

JAMES A. FELDMAN

Assistant to the Solicitor

General

ANDREW J. DOYLE

Attorney

1. Section 101 of the Clean Air Act, 42 U.S.C. 7401,

provides in relevant part:

§ 7401. Congressional findings and declaration of

purpose

(a) Findings

The Congress finds—

(3) that air pollution prevention (that is, the

reduction or elimination, through any measures, of the

amount of pollutants produced or created at the source)

and air pollution control at its source is the primary

responsibility of States and local governments; and

(4) that Federal financial assistance and leadership is

essential for the development of cooperative Federal,

State, regional, and local programs to prevent and ccntrol

air pollution.

(b) Declaration

The purposes of this subchapter are—

(1) to protect and enhance the quality of the Nation’s

air resources so as to promote the public health and

welfare and the productive capacity of its population;

* * * * *

A primary goal of this chapter is to encourage or

otherwise promote reasonable Federal, State, and local

governmental actions, consistent with the provisions of this

chapter, for pollution prevention.

(la)

2. Section 107 of the Clean Air Act, 42 U.S.C. 7407,

provides in relevant part:

§ 7407. Air quality control regions

(a) Responsibility of each State for air quality;

submission of implementation plan

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 each State.

(d) Designations

(1) Designations generally

(A) Submission by Governors of initial designa-

tions following promulgation of new or re-

vised standards

By such date as the Administrator may reasonably

require, * * * the Governor of each State shall (and at

any other time the Governor of a State deems appropri-

ate the Governor may) submit to the Administrator a

list of all areas (or portions thereof) in the State,

designating as—

(i) nonattainment, any area that does not

meet (or that contributes to ambient air quality in

a nearby area that does not meet) the national

primary or secondary ambient air quality stan-

dard for the pollutant,

(ii) attainment, any area (other than an area

identified in clause (i)) that meets the national

primary or secondary ambient air quality

standards for the pollutant, or

(iii) unclassifiable, any area that cannot be

classified on the basis of available information as

meeting or not meeting the national primary or

secondary ambient air quality standard for the

pollutant.

* * * * *

(B) Promulgation by EPA of designations

() * * [Tze Administrator shall promul-

gate the designations of all areas (or portions

thereof) submitted under subparagraph (A) as

expeditiously as practicable * * * *

(ii) In making the promulgations required

under clause (i), the Administrator may make

such modifications as the Administrator deems

necessary to the designations of the areas (or

portions thereof) submitted under subparagraph

(A) (including to the boundaries of such areas or

portions thereof). * * * *

8 Section 110 of the Clean Air Act, 42 U.S.C. 7410,

provides in relevant part:

§ 7410. State implementation plans for national pri-

mary and secondary ambient air quality stan-

dards

(a) Adoption of plan by State; submission to —

strator; content of plan; revision; new sources;

indirect source review program; supplemental or

intermittent control systems

(1) Each State shall * * * adopt and submit to the

Administrator * * * a plan which provides for imple-

mentation, maintenance, and enforcement of such primary

standard in each air quality control region (or portion

thereof) within such State. In addition, such State shall

adopt and submit to the Administrator * * * a plan which

provides for implementation, maintenance, and enforcement

of such secondary standard in each air quality control region

(or portion thereof) within such State. * * * *

(2) * * * * Each such plan shall —

(A) include enforceable emission limitations and other

control measures, means, or techniques as may be

necessary or appropriate to meet the applicable

requirements of this chapter; * * *

of the measures described in subparagraph (A), and

regulation of the modification and construction of any

stationary source within the areas covered by the plan as

necessary to assure that national ambient air quality

standards are achieved, including a permit program as

required in parts C and D of this subchapter; * * * *

* * * * *

proposed regulations setting forth implementa-

tion plan; transportation regulations study and

report; parking surcharge; suspension authority;

plan implementation

(1) The Administrator shall promulgate a Federal

implementation plan at any time within 2 years after the

Administrator —

(A) finds that a State has failed to make a required

submission or finds that the plan or plan revision

submitted by the State does not satisfy the minimum

criteria established under subsection (k)1)(A) of this

section, or

(B) disapproves a State implementation plan sub-

mission in whole or in part,

unless the State corrects the deficiency, and the Admini-

strator approves the plan or plan revision, before the Ad-

ministrator promulgates such Federal implementation plan.

* * * * *

(j) Technological systems of continuous emission

reduction on new or modified stationary sources;

compliance with performance standards

As a condition for issuance of any permit required under

this subchapter, the owner or operator of each new or

modified stationary source which is required to obtain such a

permit must show to the satisfaction of the permitting

authority that the technological system of continuous emis-

sion reduction which is to be used will enable such source to

comply with the standards of performance which are to

apply to such source and that the construction or modifi-

cation and operation of such source will be in compliance

with all other requirements of this chapter.

4. Section 113 of the Clean Air Act, 42 U.S.C. 7413,

provides in relevant part:

§ 7413. Federal Enforcement

(a) In general

(1) Order to comply with SIP

Whenever, on the basis of any information available to

the Administrator, the Administrator finds that any person

has violated or is in violation of any requirement or pro-

hibition of an applicable implementation plan or permit, the

Administrator shall notify the person and the State in which

the plan applies of such finding. At any time after the

expiration of 30 days following the date on which such notice

of a violation is issued, the Administrator may * * *

(A) issue an order requiring such person to

comply with the requirements or prohibitions of such

plan or permit,

(B) issue an administrative penalty order in

accordance with subsection (d) of this section, or

section (b) of this section.

(2) State failure to enforce SIP or permit program

Whenever, on the basis of information available to the

Administrator, the Administrator finds that violations of an

applicable implementation plan or an approved permit

program under subchapter V of this chapter are so wide-

spread that such violations appear to result from a failure of

the State in which the plan or permit program applies to

enforce the plan or permit program effectively, the

Administrator shall so notify the State. * During the

period beginning with such public notice and ending when

such State satisfies the Administrator that it will enforce

such plan or permit program (hereafter referred to in this

section as “period of federally assumed enforcement”), the

Administrator may enforce any requirement or prohibition

— such plan or permit program with respect to any person

—

(A) issuing an order requiring such person to

comply with such requirement or prohibition,

(B) issuing an administrative penalty order in

accordance with subsection (d) of this section, or

subsection (b) of this section.

(3) EPA enforcement of other requirements

Except for a requirement or prohibition enforceable

under the preceding provisions of this subsection, whenever,

on the basis of any information available to the Admini-

strator, the Administrator finds that any person has

violated, or is in violation of, any other requirement or pro-

hibition of this subchapter, section 7603 of this title, sub-

chapter IV-A, subchapter V, or subchapter VI of this

chapter, including, but not limited to, a requirement or pro-

hibition of any rule, plan, order, waiver, or permit pro-

mgulated, issued, or approved under those provisions or

subchapters, * * * the Administrator may—

(A) issue an administrative penalty or‘er in accor-

dance with subsection (d) of this section,

(B) issue an order requiring such person to comply

with such requirement or prohibition,

(b) of this section or section 7605 of this title, or

(D) request the Attorney General to commence a

criminal action in accordance with subsection (c) of this

section.

(4) Requirements for orders

An order issued under this subsection * * * shall not

take effect until the person to whom it is issued has had an

opportunity to confer with the Administrator concerning the

alleged violation. A copy of any order issued under this

subsection shall be sent to the State air pollution control

agency of any State in which the violation occurs. Any order

issued under this subsection shall state with reasonable

specificity the nature of the violation and specify a time for

compliance which the Administrator determines is reason-

able, taking into account the seriousness of the violation and

any good faith efforts to comply with applicable require-

ments. * * * * No order issued under this subsection shall

prevent the State or the Administrator from assessing any

penalties nor otherwise affect or limit the State’s or the

United States authority to enforce under other provisions of

this chapter, nor affect any person’s obligations to comply

with any section of this chapter or with a term or condition

of any permit or applicable implementation plan promul-

gated or approved under this chapter.

(5) Failure to comply with new source requirements

Whenever, on the basis of any available information, the

Administrator finds that a State is not acting in compliance

with any requirement or prohibition of the chapter relating

to the construction of new sources or the modification of

existing sources, the Administrator may-

(A) issue an order prohibiting the construction or

modification of any major stationary source in any area to

which such requirement applies;

(B) issue an administrative penalty order in accor-

dance with subsection (d) of this section, or

section.

Nothing in this subsection shall preclude the United States

from commencing a criminal action under subsection (c) of

this section at any time for any such violation.

(b) Civil judicial enforcement

The Administrator shall, as appropriate, in the case of

any person that is the owner or operator of an affected

source, a major emitting facility, or a major stationary

source, and may, in the case of any other person, commence a

civil action for a permanent or temporary injunction, or to

assess and recover a civil penalty or not more than $25,000

per day for each violation, or both, in any of the following

instances:

(1) Whenever such person has violated, or is in vio-

lation of, any requirement or prohibition of an applicable

implementation plan or permit. * * * *

(2) Whenever such person has violated, or is in

violation of, any other requirement or prohibition of this

subchapter * * * including, but not limited to, a

requirement or prohibition of any rule, order, waiver, or

permit promulgated, issued, or approved under this

chapter * * * *

(3) Whenever such person attempts to construct or

modify a major stationary source in any area with repect

to which a finding under subsection (a)(5) of this section

has been made.

Any action under this subsection may be brought in the

district court of the United States for the district in which

the violation is alleged to have occurred, or is occurring, or i

which the defendant resides, or where the defendant’s

principal place of business is located, and such court shall

have jurisdiction to restrain such violation, to require

compliance, to assess such civil penalty, * * * and to award

any other appropriate relief. Notice of the commencement of

such action shall be given to the appropriate State air

pollution control agency. * * * *

* * * * *

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(e) Penalty assessment criteria

(1) In determining the amount of any penalty to be

assessed under this section or section 7604(a) of this title, the

Administrator or the court, as appropriate, shall take into

consideration (in addition to such other factors as justice

may require) the size of the business, the economic impact of

the penalty on the business, the violator’s full compliance

history and good faith efforts to comply, the duration of the

violation as established by any credible evidence * * *,

payment by the violator of penalties previously assessed for

the same violation, the economic benefit of noncompliance,

and the seriousness of the violation. * * * *

5. Section 116 of the Clean Air Act, 42 U.S.C. 7416,

provides:

§ 7416. Retention of State authority.

Except as otherwise provided in sections 1857c-10(c), (e),

and (f) (as in effect before August 7, 1977), 7543, 7545(c)(4),

and 7573 of this title (preempting certain State regulation of

moving sources) nothing in this chapter shall preclude or

deny the right of any State or political subdivision thereof to

adopt or enforce (1) any standard or limitation respecting

emissions of air pollutants or (2) any requirement respecting

control or abatement of air pollution; except that if an

emission standard or limitation is in effect under an

applicable implementation plan or under section 7411 or

section 7412 of this title, such State or political subdivision

may not adopt or enforce any emission standard or limitation

which is less stringent than the standard or limitation under

such plan or section.

lla

6. Section 160 of the Clean Air Act, 42 U.S.C. 7470,

provides:

§ 7470. Congressional declaration of purpose

The purposes of this part [Part C—Prevention of

Significant Deterioration of Air Quality] are as follows:

(1) to protect public health and welfare from any actual or

potential adverse effect which in the Administrator’s

judgment may reasonably be anticipate [sic] to occur from

air pollution or from exposures to pollutants in other media,

which pollutants originate as emissions to the ambient air{],

notwithstanding attainment and maintenance of all national

ambient air quality standards;

(2) preserve, protect, and enhance the air quality in

national parks, national wilderness areas, national monu-

ments, national seashores, and other areas of special national

or regional natural, recreational, scenic , or historic value;

(3) to insure that economic growth will occur in a manner

consistent with the preservation of existing clean air re-

sources;

(4) to assure that emissions from any source in any State

will not interfere with any portion of the applicable imple-

mentation plan to prevent significant deterioration of air

quality for any other State; and

(5) to assure that any decision to permit increased air

pollution in any area to which this section applies is made

only after careful evaluation of all the consequences of such a

decision and after adequate procedural opportunities for

informed public participation in the decisionmaking process.

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7. Section 161 of the Clean Air Act, 42 U.S.C. 7471,

provides:

§ 7471. Plan requirements

In accordance with the policy of section 7401(b)(1) of this

title, each applicable implementation plan shall contain

emission limitations and such other measures as may be

necessary, as determined under regulations promulgated

under this part, to prevent significant deterioration of air

quality in each region (or portion thereof) designated

pursuant to section 7407 of this title as attainment or

unclassifiable.

8. Section 162 of the Clean Air Act, 42 U.S.C. 7472,

provides in relevant part:

§ 7472. Initial classifications

* * * * *

(b) Areas designated as class II

All areas in such State designated pursuant to section

7407(d) of this title as attainment or unclassifiable which are

not established as class I under subsection (a) of this section

shall be class II areas unless redesignated under section 7474

of this title.

9. Section 165 of the Clean Air Act, 42 U.S.C. 7475(a),

provides in relevant part:

§ 7475. Preconstruction requirements

(a) Major emitting facilities on which construction is

commenced

No major emitting facility * * * may be constructed in

any area to which this part applies unless-

(1) a permit has been issued for such proposed

facility in accordance with this part setting forth emission

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limitations for such facility which conform to the

requirements of this part;

(2) the proposed permit has been subject to a

review in accordance with this section, the required

analysis has been conducted in accordance with

regulations promulgated by the Administrator, and a

public hearing has been held with opportunity for

interested persons including representatives of the

Administrator to appear and submit written or oral

presentations on the air quality impact of such source,

alternatives thereto, control technology requirements,

and other appropriate considerations;

(3) the owner or operator of such facility demon-

strates, as required pursuant to section 7410(j) of this

title, that emissions from construction or operation of such

facility will not cause, or contribute to, air pollution in

excess from construction or operation of such facility will

not cause, or contribute to, air pollution in excess of any

(A) maximum allowable increase or maximum allowable

concentration for any pollutant in any area to which this

part applies more than one time per year, (B) national

ambient air quality standard in any air quality control

region, or (C) any other applicable emission standard or

standard of performance under this chapter;

(4) the proposed facility is subject to the best

available control technology for each pollutant subject to

regulation under this chapter emitted from, or which

results from, such facility;

(5) the provisions of subjection (d) of this section

with respect to protection of class I areas have been

complied with for such facility;

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. (6) there has been an analysis of any air quality

impacts projected for the area as a result of growth

associated with such facility;

(7) the person who owns or operates, or proposes to

own or operate, a major emitting facility for which a

permit is required under this part agrees to conduct such

monitoring as may be necessary to determine the effect

which emissions from any such facility may have, or is

having, on air quality in any area which may be affected

by emissions from such source; and

(8) in the case of a source which proposes to

construct in a class III area, emissions from which would

cause or contribute to exceeding the maximum allowable

increments applicable in a class II area and where no

standard under section 7411 of this title has been

promulgated subsequent to August 7, 1977, for such

source category, the Administrative has approved the

determination of best available control technology as set

forth in the permit.

Any completed permit application under section 7410 of

this title for a major emitting facility in any area to which

this part applies shall be granted or denied not later than one

year after the date of filing of such completed application.

(d) Action taken on permit applications; notice;

adverse impact on air quality related values;

variance; emission limitations

(1) Each State shall transmit to the Administrator a

copy of each permit application relating to a major emitting

facility received by such State and provide notice to the

— ——

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Administrator of every action related to the consideration of

such permit.

(2(A) The Administrator shall provide notice of the

permit application to the Federal Land Manager and the

Federal official charged with direct responsibility for

management of any lands within a class I areas which may

be affected by emissions from the proposed facility.

(B) The Federal Land Manager and the Federal official

charged with direct responsibility for management of such

lands shall have an affirmative responsibility to protect the

air quality related values (including visibility) of such lands

within a class I area and to consider, in consultation with the

Administrator, whether a proposed major emitting facility

will have an adverse impact on such values.

(Cy i) In any case where the Federal official charged with

direct responsibility for management of any lands within a

class I area or the Federal Land Manager of such lands, or

the Administrator, or the Governor of an adjacent State

containing such a class I area files a notice alleging that

emissions from a proposed major emitting facility may cause

or contribute to a change in the air quality in such area and

identifying the potential adverse impact of such change, a

permit shall not be issued unless the owner or operator of

such facility demonstrates that emissions of particular

matter and sulfur dioxide will not cause or contribute to con-

centrations which exceed the maximum allowable increases

for a class I area.

(ii) In any case where the Federal Land Manager

demonstrates to the satisfaction of the State that the emis-

sions from such facility will have an adverse impact on the

air quality-related values (including visibility) of such lands,

notwithstanding: the face that the change in air quality

resulting from emissions from such facility will not cause or

16a

contribute to concentrations which exceed the maximum

allowable increases for a class I area, a permit shall not be

issued.

(iii) In any case where the owner or operator of such

facility demonstrates to the satisfaction of the Federal Land

Manager, and the Federal Land Manager so certifies, that

the emissions from such facility will have no adverse impact

on the air quality-related values of such lands (including

visibility), notwithstanding the fact that the change in air

quality resulting from emissions from such facility will cause

or contribute to concentrations which exceed the maximum

allowable increases for class I areas, the State may issue a

permit.

10. Section 167 of the Clean Air Act, 42 U.S.C. 7477,

provides:

§ 7477. Enforcement

The Administrator shall, and a State may, take such

measures, including issuance of an order, or seeking

injunctive relief, as necessary to prevent the construction or

modification of a major emitting facility which does not

conform to the requirements of this part, or which is

proposed to be constructed in any area designated pursuant

to section 7407(d) of this title as attainment or unclassifiable

and which is not subject to an implementation plan which

meets the requirements of this part.

11. Section 169 of the Clean Air Act, 42 U.S.C. 7479,

provides in relevant part:

§ 7479. Definitions

-For purposes of this part —

17a

(3) the term “best available control technology” means 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 achiev-

able for such facility through application of production

processes and available methods, systems, and techniques,

including fuel cleaning, clean fuels, or treatment or innova-

tive fuel combustion techniques for control of each such

pollutant. In no event shall application of “best available

control technology” result in emissions of any pollutants

which will exceed the emissions allowed by any applicable

standard established pursuant to section 7411 or 7412 of this

title. Emissions from any source utilizing clean fuels, or any

other means, to comply with this paragraph shall not be

allowed to increase above levels that would have been

required under this paragraph as it existed prior to enact-

ment of the Clean Air Amendments of 1990.

12. Section 7607(b) of the Clean Air Act, 42 U.S.C.

7607(b), provides in pertinent part:

(b) Judicial review

(1) * * * A petition for review of the Administrator’s

action in approving or promulgating any implementation

plan under section 7410 of this title or section 7411(d) of this

title, any order under section 7411(j) of this title, under

section 7412 of this title, under section 7419 of this title, or

under section 7419 of this title, or under section 7420 of this

title, or his action under section 1857c-10(c)(2)(A), (B), or (C)

of this title (as in effect before August 7, 1977) or under

regulations thereunder, or revising regulations for enhanced

monitoring and compliance certification programs under

section 7414(a)(3) of this title, or any other final action of the

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Administrator under this chapter (including any denial or

disapproval by the Administrator under subchapter I of this

chapter) which is locally or regionally applicable may be filed

only in the United States Court of Appeals for the

appropriate circuit.* * *

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement. * * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.