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

Beene Court, U.S.

_ED

STATE OF ALASKA, DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Petitioner,

vs.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et ai.,

Respondents.

.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF AMICI CURIAE STATES OF

NORTH DAKOTA, WYOMING, ALABAMA,

DELAWARE, IOWA, NEBRASKA, NEVADA,

OKLAHOMA, SOUTH DAKOTA, UTAH, AND

VIRGINIA IN SUPPORT OF PETITIONER

¢

WAYNE STENEHJEM PATRICK J. CRANK

NORTH DAKOTA ATTORNEY WYOMING ATTORNEY

GENERAL GENERAL

LYLE WITHAM THEODORE C. PRESTON

Assistant Attorney General Assistant Attorney General

Counsel of Record 123 Capitol Building

600 E. Boulevard Ave. Cheyenne, WY 82002

Bismarck, ND 58505-0040 (303) 777-6946

(701) 328-2210

Counsel for Amici Curiae States

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

nor

WILLIAM H. Pryor, JR.

Alabama Attorney General

Alabama State House

11 South Union Street

Third Floor

Montgomery, Alabama

36130

(334) 242-7300

M. JANE BRADY

Delaware Attorney General

820 N. French Street

Wilmington, Delaware

19801

(302) 577-8400

THOMAS J. MILLER

Iowa Attorney General

1305 East Walnut Street

Des Moines, Iowa 50319

(515) 281-5164

JON BRUNING

Nebraska Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

BRIAN SANDOVAL

Nevada Attorney General

100 North Carson Street

Carson City, Nevada

89701-4717

(775) 684-1100

W.A. DREW EDMONDSON

Oklahoma Attorney General

2300 N. Lincoln Boulevard,

Suite 112

Oklahoma City, Oklahoma

73105-4894

(405) 521-3921

LARRY LONG

South Dakota Attorney

General

500 East Capitol

Pierre, South Dakota

57501-5070

(605) 773-3215

MARK L. SHURTLEFF

Utah Attorney General

236 State Capitol

Salt Lake City, Utah 84114

(801) 538-9600

JERRY W. KILGORE

Virginia Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

ESET.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......... sipesipndneenseeneenssensees

BRIEF OF AMICI CURIA. ..........0..:::ccccsseeesssseeeeeeees

STATEMENT OF INTEREST..................

SUMMARY OF ARGUMENT.........00000.0.....cccccececeeeeees

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Il.

THE NINTH CIRCUITS DECISION

WRONGLY DEPRIVES THE STATES OF

THEIR AUTHORITY TO DETERMINE

A. Congress Expressly Reserved To The

States Specific Authority Under The

B. EPA May Not Usurp Reserved State Au-

thority Through Enforcement Orders......

THE NINTH CIRCUIT DECISION WILL

HARM STATE AIR PROGRAMS AND IN-

A. Divesting States Of Their Primary Au-

thority To Determine BACT Will Impede

B. Permitting EPA To Veto State Selection Of

BACT Will Lead To Uncertainty Ameng

Permittees And Applicants, Which Will

15

ii

TABLE OF CONTENTS - Continued

C. EPA’s Reliance On Enforcement Orders

Page

Will Render Superfluous The Adminis-

trative Process For Determining BACT,

Resulting in Poor And Largely Unre-

viewable BACT Determinations

CONCLUSION

SOSH SOTO OSHS ESHS SSS ESS EEE SESOS ESE SEEESESESESESESSSEES

TABLE OF AUTHORITIES

Page

CASES

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

Sits TTI isesnosccenscisigihsaesiomennininateneineneiasieaitanieiad 3, 5, 15

Small Refiner Lead Phase-Down Task Force v. EPA,

705 F.2d 506 (C.A.D.C. 1983) .......cccccccescesvesreseeseeseeseseee 16

Train v. Natural Res. Def. Council, Inc., 421 U.S. 60

a esieilintioa 5

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ...........0000-0-0-- 5

STATUTES AND REGULATIONS

39 Fed. Reg. 31000 (Aug. 27, 1974) ........ccccccssessesseeseeeeeneeons "

ee 5

40 C.FR. § 51.166(bX 12) (1999)........ccccccceccesceeseeseeseeeeeneeeees "

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iv

TABLE OF AUTHORITIES - Continued

Page

Se era ea reese 2,8

EE na eT: 2,6

Adler, Jonathan H., Let 50 Flowers Bloom: Trans-

forming the States into Laboratories of Environ-

mental Policy, 31 ENvTL. L. REP. 11284 (Nov.

Sarre cicesiteiamereitepaiiaetibeimnietatiiaiiaiame acacia atin 12, 18

Brown, R. Steven, The States Protect the Environ-

ment, ECOStares (Summer 1999), (http:/www.sso.

org/ecos/publications/statesarticle. htm)......................... ll

Dwyer, John P., The Practice of Federalism Under

the Clean Air Act, 54 Mp. L. REV. 1183 (1995)......... 12, 13

Gade, Mary A., When the States Come Marching In,

10 NaT. RES. & ENV'T 3 (1996) ...........c.ccccccccccceccecseceeeeees 12

Nat'l Acad. of Public Admin., Report to Congress,

Setting Priorities, Getting Results: A New Direc-

tion for Environmental Protection Agency 2

SUE TEIIED rresschbeieenpniesibeiattataceinantenenhineaienaineinsericatinaiatl tatitnitaaanaeeeeenee 12

Stewart, Richard B., Pyramids of Sacrifice?: Prob-

lems of Federalism in Mandating State Imple-

mentation of National Environmental Policy, 86

SRT TR 11

1

BRIEF OF AMICI CURIAE

The States of North Dakota, Wyoming, Alabama,

Delaware, Iowa, Nebraska, Nevada, Oklahoma, South

Dakota, Utah, and Virginia, as amici curiae (“Amici

States”), respectfully submit this brief in support of

Petitioner the State of Alaska. Amici States oppose the

decision below of the United States Court of Appeals for

the Ninth Circuit, which skews the federal-state partner-

ship envisioned by Congress under the Clean Air Act (the

“Act”), 42 U.S.C. §§ 7401-76714, in general and, in particu-

lar, under the Act’s Prevention of Significant Deterioration

(“PSD”) provisions, id., §§ 7470-79. Amici States urge this

Court to reverse in order to correct the imbalance wrought

by the Ninth Circuit’s decision.

S

STATEMENT OF INTEREST

Protection of public health and the environment is of

manifest importance to all States. Air pollution affects

health and quality of life, and it has obvious impacts on

the environment. As a result, Amici States fully support

the goals and policies that underlie and are embodied in

the Act. At the same time, Amici States share an interest

in ensuring that the Act is construed in a way that pro-

tects the social and economic well-being of their citizens,

as well as their public health and welfare. Amici States

also have a compelling interest in protecting their con-

gressionally-mandated authority under the Act, in ensur-

ing sound PSD permitting decisions, in avoiding confusion

concerning the scope of state-versus-federal authority, and

in promoting the orderly function of their administrative

decision-making processes under the PSD program.

2

Because the analysis and conclusion of the Ninth Circuit

decision are contrary to each of these interests, Amici

States support reversal of the judgment below.

¢

SUMMARY OF ARGUMENT

The Clean Air Act recognizes and respects the tension

that can arise between environmental protection and

social and economic impacts on a community. Congress

expressly reserved to the States the role of balancing those

competing concerns under the Act’s PSD provisions, which

apply in “clean air” areas of the country. The Act requires

new sources of pollutant emissions to use Best Available

Control Technology (“BACT”) in areas where air quality is

already better than the National Ambient Air Quality

Standards (the “NAAQS”). In the statutory definition of

BACT, Congress provided that the States must decide

what constitutes BACT for a particular source, based on a

consideration of “energy, environmental, and economic

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

Nowhere in the language or the structure of the Act,

or in its legislative history, did Congress state or imply

that the States’ BACT determinations are merely prelimi-

nary. Yet the Ninth Circuit erroneously held that the

States’ BACT decisions are only “initial” and are subject to

EPA’s “ultimate” authority to override the States’

determinations. Pet. App. at 10a-lla. The Ninth Circuit

wrongly relied on 42 U.S.C. § 7413(aX5XA) and 42 U.S.C.

§ 7477 for EPA’s new-found “ultimate” authority to veto

state BACT decisions. Those provisions permit EPA to

issue enforcement orders to redress violations of the Act’s

“requirements,” but not to preempt discretionary state

3

decisionmaking with which EPA simply subjectively

disagrees. Despite the clear statutory assignment of

authority to the States, the Ninth Circuit’s decision

effectively strips the State of Alaska of its primary role of

weighing the statutory BACT factors in its implementa-

tion of its PSD program.

In addition to misconstruing the Act’s BACT and

enforcement provisions, the Ninth Circuit’s decision, if

uncorrected, will significantly harm the States’ environ-

mental programs and, as a result, will harm the citizens of

the States and the nation as a whole.

First, as illustrated by this case, the environment

itself will suffer if the States are squeezed out of their

crucial role in PSD permitting decisions. Congress had a

good reason for explicitly making the States, not EPA,

responsible for determining BACT: The States simply do a

better job than EPA can or will do in making these essen-

tially local judgments. The end-result of the Ninth Cir-

cuit’s decision, if affirmed, will be flawed decisions with

attendant adverse environmental and social consequences.

Second, permit applicants will be uncertain as to

whether and when EPA will choose to inject itself into the

state permit-issuance process, and as to whether they can

participate in that process with confidence that they can

rely on the state-issued PSD permit. That uncertainty, in

turn, will frustrate growth, thereby depriving the States of

control over the “growth management decisions” that

Congress specifically “left . . . for resolution by the states.”

Alabama Power Co. v. Costle, 636 F.2d 323, 364 (D.C. Cir.

1980).

Third, the administrative process will be thrown into

disarray; state administrative procedures for hearings on

4

and review of permitting decisions will be rendered super-

fluous as applicants work directly with EPA instead of

through State air programs. Absent defined procedures in

the context of administrative hearings, there will be no

opportunity to test the bases for EPA’s insistence on

alternative BACT determinations, and no genuine admin-

istrative records to allow informed judicial review. EPA’s

bypassing of orderly administrative review procedures will

have two negative consequences: It will impair the quality

of ultimate BACT decisions while, ironically, making EPA’s

unilateral determinations virtually unreviewable.

+

ARGUMENT

I. The Ninth Circuit’s Decision Wrongly Deprives

The States Of Their Authority To Determine

BACT

A. Congress Expressly Reserved To The States

Specific Authority Under The Clean Air Act

In the Clean Air Act, Congress assigned distinct roles

to the federal and state governments. A key federal role is

the promulgation of the NAAQS, which define the amount

of pollutants that may exist in a given area without

harming public health and welfare. 42 U.S.C. § 7409.

Despite EPA's responsibility for setting the NAAQS, which

apply nationally, the Act makes clear that “air pollution

prevention . .. and air pollution control at its source is the

primary responsibility of States and local governments.”

Id. § 7401(a)3). Thus, the States, through their approved

State Implementation Plans (“SIPs”), are charged with

implementation of the federally-set NAAQS. Id. § 7410. As

this Court has recognized, “Congress plainly left with the

5

States, so long as the [NAAQS] were met, the power to

determine which sources would be burdened by regulation

and to what extent.” Union Elec. Co. v. EPA, 427 U.S. 246,

269 (1976); see also Train v. Natural Res. Def. Council,

Inc., 421 U.S. 60, 79 (1975).

Congress also gave the federal and state governments

distinct functions in the implementation of the PSD

program. EPA sets the allowable increments that may be

consumed for a particular regulated pollutant. 42 U.S.C.

§ 7476(a).' The States, meanwhile, determine the areas in

which the increments will apply, and ensure through their

SIPs that the increments are not exceeded. Id. § 7474(a);

40 C.FR. § 51.166(a) (1999). EPA “is without authority to

dictate to the States their policy for management of the

consumption of allowable [PSD] increments.” Alabama

Power, 636 F.2d at 361. Rather, “assuming such compli-

ance” with the maximum limitations defined by EPA

through the increments, “growth-management decisions

were left by Congress for resolution by the states.” Id. at

364.

When Congress gave the States responsibility for

managing the PSD increments, it acted consistently with

EPA’s own earlier judgment that implementation of the

PSD program is uniquely local in nature:

Any policy to prevent significant deterioration

involves difficult questions regarding how the

' Congress has set PSD increments for two pollutants itself. 42

U.S.C. §§ 7473(b), 7475(d). EPA must set allowable PSD increments for

all other regulated pollutants for which it establishes NAAQS. Id.

§ 7476(a).

6

land in any area is to be used. Traditionally,

these land use decisions have been considered

the prerogative of local and State governments,

and ... the primary opportunity for making

these decisions is reserved for the States and local

governments. .. . In the Administrator’s judgment,

this matter normally should not be handled at

the Federal level, .. .

39 Fed. Reg. 31000, 31001 (Aug. 27, 1974).

Not surprisingly in light of the Act’s allocation to state

and local governments of responsibility for “air pollution

prevention ... and air pollution control at its source,” 42

U.S.C. § 7401(aX(3), Congress also charged those States

with EPA-approved SIPs with responsibility for BACT

determinations. The Act defines BACT as “an emission

limitation ... 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); see

also 40 C.F.R. § 51.166(b)(12) (1999).?

Beyond making clear that States — not EPA — would

select BACT, Section 169(3) confirms that the determina-

tion is a discretionary one. While the Act identifies the

factors that the States must consider, the ultimate selec-

tion of BACT represents a judgment call, and there is no

one “correct” BACT for a given source. That is precisely what

Congress was thinking when it enacted the PSD provisions:

“The decision regarding the actual implementation of best

* States with approved SIPs are the “permitting authorit{i

under Section 169(3). as epee

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7

available technology is a key one, and the [Act] places this

responsibility with the State, to be determined in a case-

by-case judgment.” S. Rep. No. 95-127, at 31 (1977).

Moreover, “the phrase [BACT] has broad flexibility in how

it should and can be interpreted, depending on site.” Id.

Thus, the plain language of the statute itself, its

legislative history, decisions of this Court and lower

federal courts, and EPA’s own interpretation of the PSD

program confirm that States must determine BACT for a

particular source, and must exercise discretion in that

process.

B. EPA May Not Usurp Reserved State Au-

thority Through Enforcement Orders

Here, the State of Alaska exercised its authority to

determine BACT in accordance with the Act. It considered

a variety of possible technologies in light of the statutory

factors listed in Section 169(3); it engaged in a lengthy

dialogue with the permit applicant, EPA, and other inter-

ested parties; it independently researched the pros and

cons of the sundry of potentially available technologies; it

prepared preliminary, draft final, and final technical

analysis reports; and it ultimately selected a technology

known as “Low NOx” as BACT.

Where did Alaska go wrong? Stated bluntly, it had the

audacity to disagree with EPA and select a technology

different from the one that EPA favored — selective cata-

lytic reduction or “SCR”. EPA, offended by Alaska’s failure

to march in step, responded by issuing a series of enforce-

ment orders under Sections 113(aX5XA) and 167 of the Act.

Section 113(aX5\A) permits EPA to issue orders prohibiting

the construction of new sources or the modification of

8

existing sources when the agency “finds that a State is not

acting in compliance with any requirement or prohibition

of [the Act]” relating to such construction or modification.

42 U.S.C. § 7413(a)(5)(A). Section 167 permits orders “as

necessary to prevent the construction or modification of a

major emitting facility which does not conform to the

requirements” of the PSD provisions. Id. § 7477.

EPA asserted, and the Ninth Circuit accepted, that

Sections 113(a)(5)(A) and 167 vest EPA with broad author-

ity to use enforcement orders to override a State’s BACT

selection whenever EPA disagrees with the State’s “im-

proper determination.” Pet. App. at 10a. The Ninth Circuit

reasoned as follows: (a) Subjecting a facility to BACT is a

“requirement” of the Act and its PSD sub-part, id. at 8a;

(b) when EPA disagreed with Alaska’s choice of Low NOx

as BACT, it concluded that Alaska “had not complied with

the BACT requirement,” id. at 9a; and (3) ergo, EPA could

invoke its enforcement powers to override Alaska’s deci-

sion, id. at 10a-1la. On this basis, the Ninth Circuit held

that Alaska “made the initial BACT decision,” id. at 9a,

but “EPA has the ultimate authority” to determine BACT,

id. at 10a-1la.

The Ninth Circuit’s logic, however, is overly simplistic

and flawed. It assumes that the “requirement” of the Act,

for purposes of Sections 113(a)(5)(A) and 167, is the choice

of one particular technology as BACT, when, in fact, the

Act requires only that a State undertake a BACT analysis

and select the technology that the State deems appropri-

ate in light of the statutory factors (and one that does not

exceed the maximum increment consumption). The State’s

chosen technology might or might not coincide with EPA’s

choice of BACT, if EPA were the decision maker. The point,

however, is that EPA is not the decision maker under

9

Section 169(3), whose plain language assigns that role to

the “permitting authority,” namely, the State of Alaska in

this case. The Ninth Circuit essentially ignored that

section, which, by defining BACT as a discretionary State

judgment, necessarily defines what the BACT “require-

ment” is under the Act. Yet, the Ninth Circuit inexplicably

concluded that “[nJothing in the BACT definition of Sec-

tion 169(3) limits the EPA’s authority.” Pet. App. at 1la.

The Ninth Circuit held that “(t]he structure and

legislative history of the Act” further support the court’s

endorsement of a radical shift in power from the States to

EPA. Id. at 9a. The court reviewed various amendments to

the Act since its original enactment in 1963, concluding

that “[flollowing disappointing state response to air

pollution concerns, Congress has consistently increased

over time federal authority in pollution control.” Id. Amici

States do not dispute the legislative events that the court

summarized; they do, however, challenge the relevance of

those events to the issue in this case.

For example, the fact that in 1970 Congress directed

EPA to publish NAAQS and directed the States to develop

SIPs to meet the NAAQS, see id., has no bearing on the

then-non-existent PSD program; the federal concern in

1970 over “dirty air” areas was distinct from the later

focus of the PSD program on preserving “clean air” areas.

Moreover, as discussed supra at 4-5, but ignored by the

Ninth Circuit, Congress expressly allocated authority to

implement the NAAQS to the States. Similarly, the “inter-

nal industry ‘pressure’” referred to by the Ninth Circuit as

one basis for Congress’s adoption of the PSD provisions in

1977, Pet. App. at 10a (quoting legislative history), re-

sulted in federally-set maximum increments, but not federal

control over the implementation of the PSD program; rather,

10

Congress specifically gave that responsibility to the States.

See supra at 4-5.

Missing from the Ninth Circuit’s analysis of the Act’s

historical development are the most important points of all

— acknowledgments that (a) in 1977, Congress unambigu-

ously gave the States the primary authority to implement

the PSD program, including the duty to determine BACT,

and (b) Congress has not reduced that authority since

1977.

Under the Ninth Circuit’s decision, EPA completely

controls a State’s air program, both under the PSD provi-

sions (to which Section 167 applies) and under the State’s

SIP (to which Section 113(a)(5) applies). No matter that

Congress specifically allocated authority to the States -

EPA's enforcement power trumps that State authority. No

matter that the particular issue calls for the exercise of

discretion and that the Act does not require one objec-

tively-definable outcome —- if EPA disagrees with the

State’s subjective analysis, it may steamroll the State

through the exercise of its “ultimate” enforcement author-

ity.

The Ninth Circuit’s essential holding - which the

States urge this Court to reverse — is that the Act gives the

States only “initial responsibility” for PSD permitting

decisions, but that “EPA has the ultimate authority to

decide” BACT. Pet. App. at 10a-lla. This sweeping pro-

nouncement, based on an unduly-broad construction of the

word “requirement,” relegates state programs to mere

preliminary involvement with no substantial decision-

making power in the issuance of PSD permits. State

authority to determine BACT, and likely with respect to

other issues under the Act as well, is rendered an illusion.

11

Truly, the Ninth Circuit’s decision - upholding EPA's effort

to bootstrap a difference of opinion into a violation of law —

turns the Clean Air Act on its head.

Il. The Ninth Circuit Decision Will Harm State

Air Programs And Interests

A. Divesting States Of Their Primary Authority

To Determine BACT Will Impede Informed

Decisions

The cooperative federalism embodied in the PSD

program — with EPA setting the nationally-applicable

standards and the States implementing those standards —

is not merely what Congress mandated; it makes good

sense. Back in the early years of the Clean Air Act; Profes-

sor Richard Stewart noted the “sobering fact ... that

environmental quality involves too many intricate, geo-

graphically variegated physical and institutional interre-

lations to be dictated from Washington.” Richard B.

Stewart, Pyramids of Sacrifice: Problems of Federalism in

Mandating State Implementation of National Environ-

mental Policy, 86 YALE L.J. 1196, 1266 (1977).’

* In 1977, Professor Stewart also bemoaned the poor record of the

States in the implementation of their own and the then-existing federal

environmental laws. Jd. In the quarter century since Professor Stewart

wrote, however, the States have undeniably met the challenge in the

realm of environmental law. See generally R. Steven Brown, The States

Protect the Environment, ECOSTATES (Summer 1999) (http//www.sso.org/ecos/

publications/statesarticle htm) (reviewing statistics and trends that

support the author's conclusion that “[tJhe States have become the

primary environmental protection agencies across the nation”).

12

Twenty-five years of experience have borne out those

early observations. Commentator after commentator has

opined, and study after study has confirmed, that

“(substantial participation by state officials and state

bureaucracies is essential if the federal government is to

achieve its environmental goals.” John P. Dwyer, The

Practice of Federalism Under the Clean Air Act, 54 MD. L.

REV. 1183, 1216 (1995). “The local and regional nature of

many environmental problems means that local knowl-

edge and expertise is necessary to develop proper solu-

tions. Such localized knowledge is simply beyond the reach

of even the most intrepid federal regulators.” Jonathan H.

Adler, Let 50 Flowers Bloom: Transforming the States into

Laboratories of Environmental Policy, 31 ENVTL. L. REP.

11284, 11286 (Nov. 2001);* see also Mary A. Gade, When

the States Come Marching In, 10 Nat. Res. & ENv’'T 3, 4

(1996) (“[S}tates are closest to their constituents and

problems, bringing a necessary sensitivity and perspective

to local environmental issues that even EPA's ten regional

offices, often many hundreds of miles away, can’t have.”);

Nat'l Acad. of Public Admin., Report to Congress, Setting

Priorities, Getting Results: A New Direction for the Envi-

ronmental Protection Agency 2 (1995) (“EPA and Congress

need to hand more responsibility and decision-making

authority over to the states and localities. ... [In] those

states that are capable and willing to take over functions

* Professor Adler advocates an increased state role in establishing

environmental policy, including, for example, the setting of pollution

standards. The issue in this appeal is far tamer — whether the States

are entitled to exercise the discretion that Congress gave to them in

here.

13

from the federal government, ... EPA should stay out of

the way, with no second-guessing.”).

A meaningful state role in implementation is impera-

tive for obvious reasons. Ours is a huge and diverse nation

“with an astonishing range of environmental conditions

and problems.” Dwyer, supra, at 1218. To wit:

Differences in climate and weather (e.g., patterns

of temperature, wind, rainfall, humidity), geog-

raphy (e.g., deserts, mountains, plains, coastal

regions), the relative importance of sources and

types of pollution (e.g., cars, large utilities and

factories, numerous small sources), environ-

mental and public health risks (e.g., special need

for visibility control, size of affected human popu-

lation), and economic conditions confound at-

tempts to have a successful, highly centralized

regulatory program. . . . The practical need to tai-

lor implementation and enforcement to local con-

ditions requires decisionmakers who have, in

addition to an adequate knowledge of these con-

ditions, a sympathetic orientation toward local

conditions. Effective implementation requires

some consideration and accommodation of local

concerns. Precisely because they are local, and

locally accountable, state and local officials bring

that knowledge and orientation to implementa-

tion and enforcement.

Id.

The events in Alaska that gave rise to this case prove

the wisdom of congressional assignment to the States of

authority for PSD permitting decisions. Alaska took its

imol tati ‘biliti aie onl ‘tted

ample resources to select the most effective, yet feasible,

control technology. Moreover, unlike EPA, the State had a

14

unique appreciation for both the Mine’s importance to the

local economy, and for its actual operation. Thus, Alaska

selected Low NOx in part because the State could not

economically justify the steeply higher cost of SCR in light

of the value of the Mine’s expansion in a region of the

State marked by severe underemployment and largely

populated by Native Americans. J.A. 206-08.

Equally important, during the permitting process,

Alaska appreciated a fact that was lost on EPA — that the

State could achieve an even greater emissions reduction

through the negotiated installation of Low NOx on all

seven of the Mine’s generators, even though the Act

required BACT on only two engines. Alaska had concluded

that the use of Low NOx on all seven engines would have

achieved “nearly the same, if not a greater ... , level of

control as installing SCR on only two engines.” C.R. 21-

005. The State also recognized that, if it were to deem

EPA's choice of technulogy, SCR, as BACT for only two

engines, with no controls for the remaining five genera-

tors, Cominco would have an economic incentive to use the

far-costlier SCR-equipped engines for back-up purposes

only. That, in turn, would largely eliminate the potential

NOx reductions from SCR: “If an SCR controlled unit is on

standby throughout the year, then the SCR scenario could

emit up to 396 more tons of NOx per year than the Low

NOx scenario for all seven units.” C.R. 17-045. (emphasis

added) Ironically, EPA used its usurped authority to reject

maximum emissions reductions in favor of its preferred

technology.

15

B. Permitting EPA To Veto State Selection of

BACT Will Lead To Uncertainty Among Per-

mittees And Applicants, Which Will Frustrate

The Act’s PSD Program

Beyond increasing the likelihood of out-of-touch and

flawed judgments, EPA's intrusion into the state role of

determining BACT, if permitted, will inject a disturbing

degree of uncertainty into the permitting process. No

longer will the States have any real authority and, hence,

no longer will applicants be able to rely on the State’s word

during negotiations or even on the State’s issuance of a

permit. Rather, applicants will have to guess whether EPA

will preempt the State’s judgment at any point in or after

the permitting process. Or the State might refuse to issue

a permit on terms dictated by EPA rather than by the

State’s independent exercise of its discretion to determine

BACT. In both circumstances, the logical outgrowth of the

uncertainty created by EPA’s power-grab will be permit-

ting paralysis. Applicants likely will do nothing — they

simply will not undertake construction or modification of

facilities that would require PSD permits. So much for

Congress’s expectation of state control over inherently

local “growth-management decisions.” Alabama Power,

636 F.2d at 364.

C. EPA’s Reliance On Enforcement Orders Will

Render Superfluous The Administrative Proc-

ess For Determining BACT, Resulting In Poor

And Largely Unreviewable BACT Determina-

tions

As part of every EPA-approved SIP, state BACT

determinations are subject to testing in administrative

hearings and to judicial review. State procedures for

16

hearings on PSD permitting decisions ensure that those

decisions are tested by exposure to diverse public com-

ment, ensure fairness and an opportunity for interested

parties to be heard, and enhance the quality of judicial

review. Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506, 547 (C.A.D.C. 1983). All of those goals

are defeated if EPA is allowed to reach its own independ-

ent BACT decision and then force that decision on states

and permittees through enforcement orders. EPA’s unilat-

eral decision in this case was made without the benefit of a

public hearing, without considering comments from

interested parties, without weighing the statutory factors

required in the BACT definition, and without the funda-

mental background necessary to consider those factors in a

way that is sens" ive to the needs of the local area.

Congress provided for administrative hearings on

PSD permit decisions, and did so expressly to allow

(among other interested parties) the “representatives of

the [EPA] to appear and submit written or oral presenta-

tions on ... control technology requirements.” 42 U.S.C.

7475(aX2). Congress clearly intended for EPA to partici-

pate in the state administrative process to help determine

BACT, and the basic purpose of that process is to enhance

the quality of administrative decisions. The Ninth Circuit’s

conclusion that EPA is free to refuse to participate in the

state administrative process, then criticize the state

permitting agency because it failed to provide an adequate

justification for its BACT decision defies logic, is unfair to

all who participate in the state process, and undermines

the system of cooperative federalism that Congress en-

acted to allow the local persons who are directly affected to

have a say in these major decisions that significantly

17

When Congress granted EPA authority to issue

enforcement orders for violations of “requirements” of a

SIP or the Act’s PSD provisions, it did not intend EPA to

use that limited authority as a substitute for participation

in and respect for the State’s PSD permit issuance process.

Yet, in this case EPA declined to challenge Alaska’s BACT

determination at the state administrative level, thereby

denying the parties a full and fair hearing on the issues,

and depriving the State of the chance to develop a com-

plete administrative record in support of its BACT deci-

sion. EPA instead unilaterally determined BACT based on

partial and, in some cases, inaccurate information, and

forced Alaska to present the BACT issue to a federal! court

of appeals on an incompletely-developed administrative

record. If EPA’s new found authority to make unilateral

BACT decisions outside the statutorily required adminis-

trative process is allowed to stand, the risk of flawed

decision making on important environmental questions in

future PSD permitting proceedings will increase.

Once again, the instant case proves the States’ point.

EPA’s cavalier choice of its pet technology, coupled with its

refusal to participate in the Alaska administrative process,

led to fundamental errors in EPA’s analysis, which the

Ninth Circuit adopted in its decision. For example, the

Ninth Circuit accepted EPA’s position that “there were no

recent permit decisions involving BACT determinations

for diesel engines used as primary power generators,” Pet.

App. at 14a, when that is patently untrue. An August 1999

memorandum prepared as part of the State’s in-depth

analysis of the BACT issue, stated that “no similar cases

in Alaska have required SCR as BACT,” Certified Rec. 21-

018, not that there are no similar cases. In fact, even the

paltry documentation that EPA assembled unilaterally in

18

lieu of a fair and completely-deveioped administrative

record shows three recent Alaska decisions for comparable

diesel-fired generators in Unalaska, St. Paul, and Ketchi-

kan; in each case, the State had selected as BACT a

control technology less effective than Low NOx — not SCR.

44-007, 45-030.

Had EPA participated in the administrative process

that Congress mandated, those facts and others would

have received a more meaningful discussion, and perhaps

led to more thorough and more reasoned analysis by the |

agencies and courts that reviewed the record. EPA’s

refusal to participate in that process deprived the State of

Alaska, its citizens, and its environment of the reasoned

analysis of PSD permit applications that Congress in-

tended them to receive.

+

CONCLUSION

One commentator has observed that “[tJhough gener-

ally described as ‘cooperative federalism,’ the relationship

between the states and federal government in environ-

mental policy often resembles that between a feudal lord

and his serf.” Adler, supra, at 11286. The EPA enforcement

orders that the Ninth Circuit approved go a long way

toward institutionalizing a feudal relationship between

the States and EPA under the Clean Air Act’s PSD pro-

gram. But that is not what Congress intended and it is not

good for the environment or for the citizens of the States.

. San mF TL

19

Therefore, Amici States urge this Court to reverse the

judgment of the court of appeals.

Respectfully submitted,

WAYNE STENEHJEM

North Dakota Attorney

General

LYLE WITHAM

Assistant Attorney General

Counsel of Record

600 E. Boulevard Ave.

Dept. 125

Bismarck, ND 58505-0040

(701) 328-2210

PATRICK J. CRANK

a Wyoming Attorney General

THEODORE C. PRESTON

Assistant Attorney General

123 Capitol Building

Cheyenne, WY 82002

(307) 777-6946

April 25, 2003

WILLIAM H. Pryor, JR.

Alabama Attorney General

Alabama State House

11 South Union Street

Third Floor

Montgomery, Alabama

36130

(334) 242-7300

M. JANE BRADY

Delaware Attorney General

820 N. French Street

Wilmington, Delaware

19801

(302) 577-8400

THOMAS J. MILLER

Iowa Attorney General

1305 East Walnut Street

Des Moines, Iowa 50319

(515) 281-5164

JON BRUNING

Nebraska Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

BRIAN SANDOVAL

Nevada Attorney General

100 North Carson Street

Carson City, Nevada

89701-4717

(775) 684-1100

W.A. DREW EDMONDSON

Oklahoma Attorney General

2300 N. Lincoln Boulevard,

Suite 112

Oklahoma City, Oklahoma

73105-4894

(405) 521-3921

20

LARRY LONG

South Dakota Attorney

General

500 East Capitol

Pierre, South Dakota.

57501-5070

(605) 773-3215

MARK L. SHURTLEFF

Utah Attorney General

236 State Capitol

Salt Lake City, Utah 84114

(801) 538-9600

JERRY W. KILGORE

Virginia Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436