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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0615%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 461

## Text

In The vg be OFEICE OF THE CLERK |
Supreme Court of the Anited States

¢

STATE OF ALASKA, DEPARTMENT OF
ENVIRONMENTAL CONSERVATION,

Petitioner,
v.

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et ai.,

Respondents.

+

On Writ Of Certiorari To The United States
Court Of Appeals For The Ninth Circuit

+

BRIEF FOR ENVIRONMENTAL DEFENSE,
THE NATIONAL PARKS CONSERVATION
_ ASSOCIATION, THE NORTHERN ALASKA
ENVIRONMENTAL CENTER AND THE ALASKA
COMMUNITY ACTION ON TOXICS AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS

S

MICHAEL C. LEVINE SEAN H. DONAHUE
EARTHJUSTICE Counsel of Record
325 Fourth Street WASHINGTON AND LEE
Juneau, Alaska 99801 UNIVERSITY SCHOOL
(907) 586-2751 OF LAW
Lexington, Virginia 24450
ELIZABETH A. FAYAD
NATIONAL PARKS (540) 458-8400
CONSERVATION ASSOCIATION VICKIE L. PATTON
1300 19th Street, NW, ENVIRONMENTAL DEFENSE
Ste. 300 2334 North Broadway
Washington, D.C. 20036 Boulder, Colorado 80304
(202) 454-3306 (303) 440-4901

Counsel for Amici Curiae
July 15, 2003

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

\ \ \

TABLE OF CONTENTS

Page
BREE GE BAF TREE EID cvccccccccccenccapscecscessnscssconees ili
STATEMENT OF INTEREST ..................::cccesseeeeseees 1
IEG Ti xesaccessecnssescenenninsenentsenesninnisinmntennentien 2
SUMMARY OF ARGUMENT.................cccsecssseeeeeeeeee 9
PTS cccsnennsecsssnvsiitanintinnnimniaciiieininiinatinaiemiien 10

I. EPA HAS STATUTORY AUTHORITY TO EN-
FORCE THE SUBSTANCE OF THE BACT
PE PEREEEEIUE cocccscccccccsnssssccncsssosncossotoonsones 10

A. The Plain Language of the Act’s Enforce-
ment Provisions Authorizes EPA to En-

force Any PSD “Requirement.” ................... 10
B. BACT Is Integral to the Act and Is a Bind-
ing National “Requirement.”..................0++++ 11

C. The “Case-by-Case” Nature of Permitting
Authorities’ BACT Determinations Does
Not Defeat EPA’s Enforcement Authority .. 20

D. EPA Has Understood its Limited Role in
Reviewing State PSD Determinations, and
Disavowed any Power to “Second-Guess”
Reasonable State BACT Determinations.... 22

E. Relegating EPA to an Appeal Before a
State Agency or Court Is Inconsistent
With the Statute and Would Create an
Ungainly Procedure for EPA Oversight
RID TOONS, ccccccscncctsncstassenisiniiintoommneeia 24

ii

TABLE OF CONTENTS -— Continued
Page

Il. EPA PROPERLY DETERMINED THAT THE
PERMIT ISSUED BY PETITIONER IS ARBI-
TRARY AND INCONSISTENT WITH THE

iil eaenantesusesesscssessnsnosencesosseseoceeconsocccovenseceeseoee 26
SEITE ussdsodsinasarcesoceeenesecececcssosncoccceosvecescoceese 30

iii

TABLE OF AUTHORITIES
Page
CASES
AT&T Corp. v. lowa Utilities Bd., 525 U.S. 366
eee 25
Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.
IL Titties btetreteerenntmpeniguseaiininansnredpmunenineens 13, 29
American Wildlands v. Browner, 260 F.3d 1192
Sa TTT tinier eine etn intareapatlareeaeeneerenaaeeeae | 24
Arizona v. San Carlos Apache Tribe, 463 U.S. 545
iii leis edneen innate ngeaaaneaenminnmmaensel 25
EI. Du Pont De Nemours & Co. v. Train, 430 U.S.
STITT irtstaidiaeaknaasiiiehinaiiarnanataleniaaanannnieneemameremeneinniel 20
FERC v. Mississippi, 456 U.S. 742 (1982)...................000005 14
General Motors Corp. v. EPA, 496 U.S. 530 (1990) ............ 3
Hodel v. Virginia Surface Min. and Reclamation
Ass’n, Inc. , 452 U.S. 264 (1981) ..............ccssessersssessereeeees 19
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432
i ita taser nat pennareteiainamsasemnainnpienimenenninetts 10
King v. St. Vincent’s Hosp., 502 U.S. 215 (1991)............... 11
McCulloch v. Maryland, 17 U.S. 316 (1819)...................... 20
Missouri v. Holland, 252 U.S. 416 (1920)...................c.000e 20
Missouri v. Illinois, 200 U.S. 496 (1906) .............:ccccceeee 20
Motor and Equipment Mfrs. Ass’n, Inc. v. EPA, 627
RK ee 24
PUD No. 1 of Jefferson County v. Washington Dep't
of Ecology, 511 U.S. 700 (1994)...............ccesssssssesseseeeeeees 25
Panhandle Oil Co. v. Mississippi ex rel. Knox, 277
ee 23

iv

TABLE OF AUTHORITIES — Continued

Page
Sierra Club v. Ruckleshaus, 344 F.Supp. 253

(D.D.C. 1972), aff’d, 4 E.R.C. 1815 (D.C. Cir.

1972), aff’d by equally divided Court sub nom.

Fri v. Sierra Club, 412 U.S. 541 (1973) ..............ccccceee 4,5
Tennessee Valley Auth. v. Whitman, __ F.3d __.,

2003 WL 21452521 (11th Cir. June 24, 2003) ............... 10
Train v. NRDC, 421 U.S. 60 (1975) .........cccccccccceeeeeees 3, 4, 15
Union Elec. Co. v. EPA, 427 U.S. 246 (1976)....... 3, 4, 18, 24
United States v. AM General Corp., 34 F.3d 472 (7th

SE TT canienisetenichttiatinicnaiicciaieeiaiithdaniaiteiaaalbaiahlilaiiaaeiaaniiiaiall 23
Vermont Yankee Nuclear Power Corp. v. NRDC, 435

es Crt hsisscsensinneininssietanhinietinhieneaiainbinainasitadianiaaitiiasiiaiaatiead 12
Virginia v. Browner, 80 F.3d 869 (4th Cir. 1996)................ 8

STATUTES
Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat.

Sir cicichnceriaramsicincientaatieeitieaitata anaemia iiiaaidibianisaeniainiaieiditiaa 3
Clean Air Act Amendments of 1970, Pub. L. No. 91-

SC, Ti ntecineniniettrerenmenieimeenrteieneel 2,3
Clean Air Act Amendments of 1977, Pub. L. No. 95-

Fs Oe OE ecnrn ncnscenetrsicneinterennemsiigainiieniamcmneenteieeeil 3,17
Clean Air Act Amendments of 1990, Pub. L. No.

eee 3,8
Be is Ui TTT csirritenssiiurientniiniiciaeidmemttniiiinnieentnacanamennnaieenll 24
TE 25

_ 42 es OIE, cxcunncnsemnsemmmene 12
GS ee ee PD erences 3

° v

TABLE OF AUTHORITIES - Continued

Page
Ce Te, 3
| Tn ee eS mee 3
42 U.S.C. § T401(DK1) ........cccccccsccsesesesscesscsssssrecesseseecsesesesees 5
a incciiciciatinitticliceeatiainiiiamananiiinanaes ~
I cateineteiticiitinttaitacin dec lalaeincinitataiatittaaalais 4
a 4
EEA coke a wee eee RU 4
aaa 24
ieee 7
A TIE eC eC ee 7
a =.24
SEE on eee anne ce mean 14
ERTS eee eee Tc mee oP 4
Bi cece tetccterccneegnenineniimmcsieineiei 15
4B U.B.C. § T4UBMENE) ...2.2000c0cececerecccesececececececesesesesceseseseees 12
EE ee nee passim
42 U.S.C. § 7413(a)(5) (1988).........ccceccceceseseeececseseeeseeees 8, 24
a 23
8 Eee 18
A ae aera aene ae ae me ae ee 9
|, ERs eevee 19
I, Be cccrsesierncratevssencnncscienantatinitamintatasssummaa 19
TTC aa ee I 19
I i aierenieiiacrreeiinientaibaiiaieniaaenien 5

vi

TABLE OF AUTHORITIES — Continued

Page
NTC aE 8
SEI Ur Uitte ncrinrtienennctninanipininematunsintmeainenienaiies 7
IT thniinscinniiecninininnsninentatsicaniisnenmndiadadbicdmeens 6
Ee Hite icnscnninsininiiiinninnsmneciannsinmatieniesiinninitatsaentiianaal 6
EE a SEIT scrtenssensinsnenntannnscemmnininioienininnninel 20
ee ieiinsinenciciisiitiianiiciiaiiitinaaaata 13
8 a eee 5
ae PE rtensncunennnnsnnsinenneimnmaiencsimmnanintil 9, 16
42 U.S.C. § 7475(aN(2) 0.0.0... perinnesiedebenesemasmmmnteninisines 7, 26
es Oe ST niciaciensinnssicrinretnnietnanmcenbinnsimmeninnaneinialilies 5
ry ET ctcsnciscnecrsmnsenintnsmenenseninninniannial 2,6, 12
ee ee ED cctctennnnniiccsrensnmerenintimnieninmiianinn 7
aii ciecisnchibcaninaianal passim
ee Oe I cidecrnnsecnnissnenseseneninsntienmmmnsmeniiiteasl 5, 29
es ae I eiettctctennncnicncniemenentitemamnnensiil passim
ey Oe CED inincicrsinnnsnenncnnnitininauiesinneesiasaniienmeiadil 6
Se ae PE nciisrnccnterninisnenpnemnescniesensinticimmniiansl 18
Se Or CT cchinnntensienicserennnenancnnsticenniienninapeeeinia 12, 18
gE ee 15
ee ay ED crtcernccrrnincircnisisnacnsinnanaincinnininniaiiiiiaiiitiines 18
ee 12, 14, 18
ne Se Se viticncsicncenninccanatundniniiinnialicaaiiiiniens 15
ey a i crctriccnmnccenininncarentciiannentaninimsiniis 24

en 15

vii

TABLE OF AUTHORITIES - Continued

Page
ey ee ee ictstetnttenttnscninnitentenniiiiiiinas 10, 23, 24
ee ir ee eecrrnernsrntenininstssinnnnensiiitenusniattaliiimenieasisinte: 8
CN iia iiintiiieiniciatiaciiheeaea ait 8
| ea 8
es I iicinietinictisianirasicitiiatinsneisniltiiabieniaereasaeeees 8
ER 13
ey te riicriinirnenntiniemeniinrienimeaaies 8
EI ITT cctcnsestiieniesinninanentiandabennievapinantenigenidiatetiion 8
I UIT crccencerttineiapesinsintnniaiuiemniintiniitadiamambiiniaiatibainass 8
TEN Ute ncintanissennpeinninbentnictnbinetintanimninnainanimntenidl 25

REGULATIONS

18 Alaska Admin. Code (“A.A.C.”) 50.900(9) (1991)........... 6
18 Alaska Admin. Code (“A.A.C.”) 50.375...........ccccccceeeeeees 13
SD Tilircriccchceinncntnctsnnintetetebmnnnneimsensinmnapiibiiins 7
8k Eee ee 7
en ee a 7
SE UIT icicsrrsiericretrienenntedundpnnnngpnnaiminesibinumntinieadias 6
IER 28
EE OnE eae 5
ns I ancien tae iateninrnaiinniasinnantiniaiiiaiiaat 6
aT nisi creertesinnnicnptininnsenttnainaiinnneininntiienbiniien 6
ey ee icinsiniictisininsticnansnsuncuindentibiinnidiitiaanigiiinaiii 13
ee ED citrsininecirsssnicesiiceiintibiniastictnaiininenetesinaatiaiatiniibaiinianiaia 7

TABLE OF AUTHORITIES -— Continued

Page
I ik scinisniicccinianinnaiigisaiiiiatesll 28
ici cccatstininiiininibaaniieaiell 6
eT ee 13
ee ee Nem TT Foe RT 7
i caiciniiiaisiiititiinniiiiniataasinai le iad 7
PS OMEN sen. erne rie anew -
i tle -
aii chitin tiieaiiinililicaiapcicaailteii ~
a eR CT erent Te -
57 Fed. Reg. 28,093 (June 24, 1992)..........00++: Whelantanen 22
58 Fed. Reg. 15,422 (March 23, 1993) ........:s::secsesesseeseeneene 23
63 Fed. Reg. 13,795 (March 23, 1998) .........:sessessssesseseeseens 23
67 Fed. Reg. 80,186 (Dec. 31, 2002).......::c:secsessssessesnesneneenes 7
LEGISLATIVE HISTORY

1 Senate Comm. on Public Works, 93d Cong., 2d

Sess., A Legislative History of the Clean Air Act
Amendments of 1970 (Comm. Print 1974)...........::00000« 3
OO i cccccensectinseccinnianitiiinasabenensian 19
ORD, Rhee, Bin, CUGOG COTY ecccccceccrcccsesoscencsscnsesecscmssvisien 15
BE, Beam. Bie, COREE CIT ID cccccccceccsccccntnsenccenensencentencens passim
122 Cong. Rec. $3905 (March 22, 1976) .........e+s:sesseesesseens 17
123 Cong. Rec. S9169 (June 8, 1977).....ccs:cccsesserseseeseeeeneens 15

*
;
a
4
2
7)
7

ix

TABLE OF AUTHORITIES -— Continued

Page
AGENCY DECISIONS
In re Columbia Gulf Transmission Co., PSD Appeal
No. 88-11, 1989 WL 266361 (E.A.B. 1989) .............. 16, 18
In re General Motors, Inc., PSD Appeal No. 01-30,
2002 WL 373982 (E.A.B. 2002)..........ccccccccsesceeeeee seees 6, 7
In re Steel Dynamics, PSD Appeal Nos. 99-4, 99-5,
2000 WL 833062 (E.A.B. 2000)............::cccccceseseeeeeresseesees 7
OTHER AUTHORITIES
David P. Currie, Air Pollution: Federal Law and
PE Ee 3, 4,17
John P. Dwyer, The Practice of Federalism Under
the Clean Air Act, 54 Md. L. Rev. 1183 (1995)............. 3,4
Daniel Esty, Revitalizing Environmental Federal-
ism, 95 Mich. L. Rev. 570 (1996)...............0ccseerersereereeeees 3
Craig N. Oren, Clearing the Air, 9 Va. Envtl. L.J. 45
Sa eiirectecnncnnesttebinllenbetenneniiaimacisiaaia ieee tea aratmaaae 17

Craig N. Oren, Prevention of Significant Deteriora-
tion: Control-Compelling Versus Site-Shifting, 74
Iowa L. Rev. 1, 3 (1988) (“PSD”) .............c0c0s0000ee00e0 5, 6, 21

Craig N. Oren, The Protection of Parklands from
Air Pollution: A Look at Current Policy, 13 Harv.

EE aD 19
National Commission on Air Quality, To Breathe
ETE ne ae 16, 17

Robert V. Percival, Environmental Federalism:
Historical Roots and Contemporary Models, 54
I is aaa 3

xX

TABLE OF AUTHORITIES -— Continued

Page
Arnold W. Reitze, Jr., The Legislative History of
U.S. Air Pollution Control, 36 Hous. L. Rev. 679
STITT aetesciasinenarnitideniteasiieidndbiiepmnenanininatadeisnnmieitieimabeinenatenieen 3
1 William H. Rodgers, Environmental Law: Air and
en TIE cnntenienenieciniientenpanncnmnimaninnmaiionmmund 5, 18, 24
Richard B. Stewart, Pyramids of Sacrifice: Prob-
lems of Federalism in Mandating State Imple-
mentation of Federal Environmental Policy, 86
eles i rnrnnscecumsenseninctinnmienstannanenmneinninn 3
Symposium: Environmental Federalism, 54 Md. L.
eee

1

STATEMENT OF INTEREST’

Environmental Defense (formerly the Environmental
Defense Fund) is a national nonpartisan, nonprofit organi-
zation representing more than 300,000 members nation-
wide. Since 1967 it has linked science, economics, and law
to create innovative, equitable, and cost-effective solutions
to the most urgent environmental problems. Environ-
mental Defense has helped design such landmark clean
air programs as the market-based pollution cap and
allowance trading program adopted in the 1990 Clean Air
Act amendments to abate acid deposition. Protecting
public health and the environment from harmful airborne
contaminants is a core organizational mission.

The National Parks Conservation Association (“NPCA”)
is the only nonprofit citizen organization solely dedicated
to protecting, preserving and enhancing the U.S. National
Park System for the benefit of present and future genera-
tions. Founded in 1919, NPCA currently has over 300,000
members from all fifty states. NPCA has a longstanding
interest in the use of the Clean Air Act and the federal
government's responsibility to protect air quality and visibil-
ity in National Park units, including the Noatak National
Preserve and the fifteen other National Park units in Alaska.

The Northern Alaska Environmental Center (North-
ern Center) promotes environmental conservation in
Interior and Arctic Alaska through advocacy, education,
and sustainable resource stewardship. The organization is
a leading conservation voice for Interior and Arctic Alaska.
Northern Center was founded in 1971 by a group of

* Pursuant to Rule 37.6, amici state that no counsel for any party
authored this brief in whole or in part, and that no person or entity
other than amici made a money contribution for the preparation or
submission of this brief. This brief is being filed with the written
consent of the parties, and the corresponding documentation is simul-
taneously being filed with the Court.

2

concerned residents and now has 1,100 members, of which
40% are from the Fairbanks area. Northern Center has
members who visit, recreate, and rely on the natural
resources of the Red Dog Mine region. True to its grass-
roots origins, Northern Center focuses on projects, such as
enforcement of environmental protections at the Red Dog
Mine, responsive to its members’ concerns.

The Alaska Community Action on Toxics (“ACAT”) is a
nonprofit organization based in Anchorage. Its mission is
to protect human health and the environment from the
effects of toxic contaminants, and it represents about 300
Alaska residents. ACAT is dedicated to achieving envi-
ronmental justice and ending production and release of
toxic chemicals.

STATEMENT

Petitioner challenges orders of the United States
Environmental Protection Agency (“EPA”) pursuant to
Sections 113(a)(5) and 167 of the Clean Air Act (“CAA” or
“Act”), 42 U.S.C. §§ 7413(a\(5), 7477, prohibiting construc-
tion of a new power generation unit, known as MG-17,
operated by Teck-Cominco, Inc. (“Cominco”), at the Red
Dog Mine in northwest Alaska. EPA issued the orders
after concluding that Cominco’s permit, granted by peti-
tioner as permitting authority, failed to comply with the
Act’s requirement that major emitting facilities install the
“best available control technology” (“BACT”) to prevent
significant deterioration of air quality. 42 U.S.C.
§ 747&aX4). Petitioner approved the use of a control technol-
ogy approximately one-third as effective as another it had
identified as technically feasible, environmentally prefer-
able, and economically affordable, on the basis of unspeci-
fied “competitive impacts” and the company’s “contributions”
to the region. The court of appeals upheld EPA's authority
to enforce the BACT requirement.

The Clean Air Act. The Clean Air Act amendments of

1970, Pub. L. No. 91-604, 84 Stat. 1676, were enacted
“to protect and enhance the quality of the Nation’s air

3

resources so as to promote the public health and welfare
and the productive capacity of its population.” 42 U.S.C.
§ 7401(b).’ They represented “a drastic remedy to what
was perceived as a serious and otherwise uncheckable
problem of air pollution,” Union Elec. Co. v. EPA, 427 U.S.
246, 256-57 (1976), and followed a series of prior congres-
sional efforts to encourage states to address that problem.
See Train v. NRDC, 421 U.S. 60, 63-67 (1975).° Still,
Congress preserved a central role for the states, establish-
ing an intricate “partnership,” under which the states
could, if they chose, assume responsibility for implement-
ing some of the Act’s central regulatory programs.‘

Subject to qualifications required by its notorious
complexity, the Act adopts two basic approaches to
structuring the federal-state partnership. See John P.
Dwyer, The Practice of Federalism Under the Clean Air

* The 1970 amendments, Pub. L. No. 91-604, 84 Stat. 1676,
amended the Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392.
The Act was again comprehensively amended in 1977, Pub. L. No. 95-
95, 91 Stat. 685, and 1990, Pub. L. No. 101-549, 104 Stat. 2399. It is
codified at 42 U.S.C. §§ 7401 et seg.

* See, e.g., Arnold W. Reitze, Jr., The Legislative History of U.S. Air
Pollution Control, 36 Hous. L. Rev. 679, 684-702 (1999); Robert V.
Percival, Environmental Federalism: Historical Roots and Contempo-
rary Models, 54 Md. L. Rev. 1141, 1155-57 (1995). On pre-1970 state
regulation, see David P. Currie, Air Pollution: Federal Law and
Analysis, §§ 1.08-1.12 (rev. ed. 1991); 1 Senate Comm. on Public Works,
93d Cong., 2d Sess., A Legislative History of the Clean Air Act Amend-
ments of 1970, at 123-25 (Comm. Print 1974). On other rationales for
federal regulation, see Richard B. Stewart, Pyramids of Sacrifice:
Problems of Federalism in Mandating State Implementation of Federal
Environmental Policy, 86 \ale L. J. 1196, 1212-13 (1977), and Daniel
Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570
(1996).

* General Motors Corp. v. EPA, 496 U.S. 530, 532 (1990); see 42
U.S.C. § 7401(aX3) (CAA provision dating from 1963 Act stating that
“air pollution prevention * * * and air pollution control at its source is
the primary responsibility of States and local governments”).

4

Act, 54 Md. L. Rev. 1183, 1193-96 (1995). One is to
establish federal goals for air quality while leaving states
discretion to select measures necessary to meet the federal
air quality goals. This approach is exemplified in the 1970
amendments’ provision for national ambient air quality
standards (“NAAQS”). 42 U.S.C. §§ 7408, 7409(a). States
were to prepare and submit for EPA review and approval
state implementation plans (“SIPs”) providing for
implementation, maintenance, and enforcement of the
NAAQS, 42 U.S.C. § 7410, but state plans could include
“whatever mix of emissions limitations” on existing
pollution sources the state chose to meet the national
standard. Train, 421 U.S. at 79.

Congress has typically taken a markedly different
approach, based on “direct federal regulation,” for new or
expanded stationary sources. Currie, Air Pollution, § 3.01
at 3-2. For such sources, the Act imposes technology-based
national standards to “force” the development of new
control technologies, see Union Elec., 427 U.S. at 457, and
to constrain states’ incentives to under-protect air quality
to attract business and to shunt pollution onto other
jurisdictions. See, infra, pp. 18-20. For example, the New
Source Performance Standards (“NSPS”), introduced in
1970, require new and modified sources to meet technol-
ogy-based standards set by EPA based on “the best system
of emission reduction * * * adequately demonstrated.” 42
U.S.C. § 7411(aX1).

As developed below, this fundamental distinction
between state discretion to set and allocate controls for
existing sources and federal technology-based require-
ments for new or modified sources is reflected in the
prevention of significant deterioration program.

The Prevention of Significant Deterioration Program.
In Sierra Club v. Ruckelshaus, the court held that the Act’s
purpose to “protect and enhance” the nation’s air quality,

eet Te PROBE +

5

42 U.S.C. §7401(b)(1), prohibited EPA or states from
allowing substantial increases in air pollution levels in
relatively “clean” areas meeting the NAAQS.’ In response,
in 1974 EPA promulgated an administrative “prevention of
significant deterioration” (“PSD”) program under which
new or expanded pollution sources would be required to
adopt the “best available control technology.”®

Congress enacted a statutory PSD program as part of
the comprehensive 1977 amendments. 42 U.S.C. §§ 7470-
7479. To ensure that states did not allow air pollution
levels in “clean air” areas to degrade toward “bare compli-
ance” with the NAAQS, the program “requires that each
new or expanded ‘major emitting facility’ in ‘clean air
areas’ use the ‘best available control technology (BACT)
for minimizing additional air pollution [and] also estab-
lish[es] ‘increments’ that limit the cumulative increase in
pollution levels over the ‘baseline concentrations’ in clean
air areas.” Craig N. Oren, Prevention of Significant Dete-
rioration: Control-Compelling versus Site-Shifting, 74 lowa
L. Rev. 1, 3 (1988) (citations omitted). The PSD requirements
are supplemental to other obligations under the Act; to
comply with its PSD obligations, a facility must also
comply with the NAAQS, NSPS, and other statutory
standards. 42 U.S.C. § 7475(aX3).

The PSD provisions establish a pre-construction
permitting requirement for new or modified “major emit-
ting facilities.” 42 U.S.C. § 7475. See 42 U.S.C. § 7479(1);
40 C.F.R. § 51.166(b)(4). “There are in practice two major
requirements” for obtaining a permit: installing BACT and
demonstrating that applicable PSD increments will not be

° 344 F.Supp. 253 (D.D.C. 1972), affd, 4 E.R.C. 1815 (D.C. Cir.
1972), aff’d by equally divided Court sub nom. Fri v. Sierra Club, 412
U.S. 541 (1973).

* See 1 William H. Rodgers, Environmental Law: Air and Water,
§ 3.21 (1986).

6

exceeded. Oren, PSD, 74 Iowa L. Rev. at 22-23. The incre-
ments are maximum allowable increases and concentra-
tions of designated pollutants that serve to “limit the
cumulative increase” in pollutant levels (measured against
baseline concentrations specific to each clean air area). 42
U.S.C. 8§ 7473, 7479(4). See 40 C.F.R. § 51.166(b), (c).’

In addition, each major emitting facility to be con-
structed or modified 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.” 42 U.S.C. § 7475(a)(4). Section 169(3) defines
BACT as: .

an emission limitation based on the maximum

degree of reduction of each pollutant subject to

regulation under this chapter emitted from or
which results from any major emitting facility,
which the permitting authority, on a case-by-case
basis, taking into account energy, environmental,
and economic impacts and other costs, deter-
mines is achievable for such facility * * * .

42 U.S.C. § 74793). EPA regulations and Alaska’s feder-
ally-approved PSD program reflect the statutory defini-
tion. See 40 C.FR. § 51.166(bX 12), § 52.21(bX 12); ISAAC.

50.900(9) (1991). EPA uses the “top-down” approach to —

determining BACT, as described in the New Source Re-
view Workshop Manual and many permitting decisions.
See In re General Motors, Inc., PSD Appeal No. 01-30, 2002

’ Increments depend on an area's classification. See 42 U.S.C.
§§ 7472-74. Class I areas, subject to the most stringent increments,
include most National Parks and other special federal lands; Class II
areas include most “clean air” areas; and Class II] areas are permitted
the greatest degree of degradation. States may reclassify areas subject
to certain limitations.

7

WL 373982, slip op. at 9 (E.AB. 2002) (citing decisions)."
Under that approach, the applicant must identify all “avail-
able” technologies; eliminate those shown to be technically
infeasible; then select the technology most effective at
reducing emissions, unless proven energy, environmental, or
economic impacts require its rejection in favor of the next
most effective technology. Jd. at 6 & n.4; see J.A. 175-77."

The PSD permitting program may be administered by
states with EPA-approved PSD programs or by EPA itself.
42 U.S.C. §§ 7410(aX2XC), 7410(c), 7471. See 40 C.F.R.
§§ 51.166, 52.21, 52.96(a) (Alaska program approval). In
either case, PSD permit applications must be reviewed
and analyzed “in accordance with regulations promulgated
by the Administrator,” and there must be a public hearing.
42 U.S.C. §§ 7475(aX2), 7475(eX3). Like the NSPS and
other CAA requirements for new and modified sources,
PSD is a component of EPA’s “New Source Review”
(“NSR”) program. See 40 C.F.R. §§ 51.165, 51.166, 52.21,
52.24, Pt. 51 App. S; 67 Fed. Reg. 80,186, 80,187-88 (Dec.
$1, 2002). As explained below, as part of the PSD program

* The Manual is 1990 draft guidance from the EPA's Office of Air
Quality Planning and Standards. As petitioner's staff noted, EPA has
“published numerous policy memoranda and guidance documents to
assist applicants and permitting authorities in using the top-down
approach.” J.A. 175.

* EPA’s Environmental Appeals Board has stated that “a strict
application of the top-down methodology” is not mandatory for state
permitting authorities, but that in evaluating the “rationality and
defensibility of BACT determinations by permitting authorities,” EPA
has “required an analysis that reflects a level of detail in the BACT
analysis comparable to the methodology in the NSR Manual.” Jn re
General Motors, slip op. at 9 (citing decisions); see also In re Steel
Dynamics, PSD Appeal Nos. 99-4, 99-5, 2000 WL 833062, slip op. at 25-
26 (E.A.B. June 22, 2000) (“top-down analysis is not a mandatory
methodology, but it is frequently used by permitting authorities to
ensure that a defensible BACT determination, involving consideration
of all requisite statutory and regulatory criteria, is reached”).

8

enacted in 1977, Congress gave EPA express authority to take
enforcement action to prevent the construction of a facility in
violation of the Act. See Section 167, 42 U.S.C. § 7477.”

The 1990 Amendments. The 1990 amendments ex-
panded the scope of Section 113(a)(5), which now provides:
“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 issue an order
prohibiting the construction or modification of a source, issue
an administrative penalty order, or commence a civil action.
42 U.S.C. §7413(aX5)." Because the PSD program (42
U.S.C. §§ 7470-7492) is part of the designated “chapter”
(Chapter 85, 42 U.S.C. §§ 7401-7671(q)), Section 113(aX5)
gives EPA authority to enforce any “requirement” of the PSD
provisions. *

* Congress broadened Section 167 in 1990 to cover facility
modifications. See 104 Stat. 2399, 2684.

" Before 1990, Section 113(aX5) was limited to violations in non-
attainment areas. 42 U.S.C. § 7413(aX5) (1988).

” The 1990 amendments added Title V of the Act, 42 U.S.C. §§ 7661a-
7661f, under which each “major source” of air pollutants must obtain an
“operating permit” consolidating all its CAA obligations. See 42 U.S.C.
§§ 766la, 766icia); 40 CPR. §70.1(b); 40 CFR. Pt. 70 (EPA Title V
regulations); Virginia v. Browner, 80 F.3d 869, 873 (4th Cir. 1996). S.ates
administering Title V must submit proposed permits to EPA for review. 42
USC. § 7661d(a); 40 C.PR. § 70.8(a). If EPA objects within 45 days that
the permit “is not in compliance with the requirements of [the CAA],” the
permitting authority “may not issue the permit.” 42 U.S.C. § 7661d(bX 1)
(2), (c); 40 C.F.R. § 70.8(c). Unless the deficiency is cured, EPA “shall issue
or deny the permit in accordance with the requirements” of the CAA 42
U.S.C. § 766id(c). EPA may “terminate, modify, or revoke and reissue”
operating permits. 42 U.S.C. § 7661d(e). Cominco applied for a Title V
permit for the Red Dog Mine on December 8, 1997; petitioner has not yet
acted on the application. See Alaska Dep't of Environmental Conservation,
available at www:state.ak us/dec/dawq/aqm/sched_xis (permit review status
for permit application No. 290) (last visited June 27, 2003).

9

SUMMARY OF ARGUMENT

The Act’s language, structure and history demonstrate
that EPA may enforce the substance of the BACT require-
ment when a state has failed to do so. Petitioner wrongly
portrays BACT as a kind of legislative afterthought that
gives states “sole discretion” (Br. 27) to allocate pollution-
control burdens, subject only to procedural requirements
and ambient air quality standards like the PSD incre-
ments. In fact, however, BACT is an essential feature of
the PSD program, intended to provide pollution controls
beyond those necessary to comply with the PSD incre-
ments and other air quality standards. See 42 U.S.C.
§ 7475(a). Congress intended BACT to “force” the adoption
of new control technologies, to counter states’ tendency to
under-protect air quality in order to attract or keep indus-
try, and to preserve air quality in adjacent states and on
special federal lands such as National Parks. See 42
U.S.C. § 7470.

In Sections 113(aX5) and 167, Congress gave EPA
authority to take enforcement action when the agency
concludes that a proposed major emitting facility fails to
meet any “requirement” of the PSD program. A facility's
obligation to install BACT is such a requirement, and the
legislative history of the 1977 amendments pointedly
confirms EPA’s enforcement authority.

EPA has long acknowledged that state permitting
authorities have discretion in determining BACT, and has
disclaimed any power to “second-guess” reasonable state
judgments. But that discretion is not a license to ignore
tue statutory text or BACT’s intended function in the PSD
program. Petitioner’s account of BACT as hopelessly stan-
dardless (Br. 24) is incompatible with the statutory text and
BACT's technology-forcing function. Its argument that EPA's
remedy for an arbitrary BACT determination is to seek state
review would, without statutory warrant, create an anoma-
lous system for enforcement of a federal statute.

In issuing Cominco’s PSD permit, petitioner acted
inconsistently with its own determinations that Selective

19

Catalytic Reduction (“SCR”) technology is far more protec-
tive of the environment than the Low NOx technology
petitioner ultimately endorsed, and that SCR is techni-
cally feasible and economically affordable. Petitioner based
its decision on vague and undocumented concerns about
“socioeconomic impacts” and “world competitiveness,”
reasoning that would eviscerate the BACT requirement.
EPA acted within its express statutory powers in taking
enforcement action.

ARGUMENT

I. EPA HAS STATUTORY AUTHORITY TO EN-
FORCE THE SUBSTANCE OF THE BACT RE-
QUIREMENT”

A. The Plain Language of the Act’s Enforce-
ment Provisions Authorizes EPA to Enforce

Any PSD “Requirement.”
Statutory construction “begins” with the statutory
text and “ends there as well” when the text yields a “clear

answer.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,

“ The court below (Pet. App. 18a) concluded that EPA's orders
represented “final action” reviewable under 42 U.S.C. § 7607(bX1). A
panel in another circuit has since held EPA compliance orders non-fina!
and unreviewable, reasoning that the CAA cloaks such orders with
serious legal consequences without giving regulated entities a meaning-
ful opportunity to challenge their factual or legal basis. Tennessee Valley
Auth. v. Whitman, __ F.3d __, 2003 WL 21452521 (11th Cir. June 24,
2003). In our view, the TVA decision is faultily reasoned. The Act does
not support the panel’s pivotal conclusion (id. at ** 17-18) that Congress
sought to preclude parties from disputing the factual or legal founda-
tion of EPA compliance orders in judicial enforcement proceedings.
Here, by comparison, the Ninth Circuit construed the statute to require
review of the underlying merits of the EPA compliance orders and
directed the Agency to submit a complete administrative record for
réView by the court of appeals, withdraw its orders, or file an enforce-
ment action in district court. Pet. App. 22a.

11

438 (1999). A statute “is to be read as a whole, since the
meaning of statutory language, plain or not, depends on
context.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221
(1991).

The Act provides a “clear answer” to the question of EPA
enforcement authority presented here. The orders EPA
issued to Cominco on February 8 and March 7, 2000, J.A.
253, 260, 264, and the December 10, 1999 finding and order
issued to petitioner, Pet. App. 26a, 36a, were authorized
under Section 167, 42 U.S.C. § 7477, which allows EPA to
enforce by administrative order or otherwise “the require-
ments” of the Act’s PSD provisions. Section 167 provides:

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 emit-

ting facility which does not conform to the re-

quirements of [part C, codifying the PSD program].

EPA likewise had express statutory authorization for
these actions under Section 113(a)(5) of the Act. Section
113(aX5) authorizes EPA to take enforcement action when
it finds that a state “is not acting in compliance with any
requirement or prohibition of [the CAA] relating to the
construction of new sources[.]” 42 U.S.C. § 7413(a)(5). The
enforcement power delegated to EPA includes issuing an
order “prohibiting the construction or modification of any
major stationary source.” Jd. On April 25, 2000, EPA,
however, withdrew the order portion of the December 10
document issued to petitioner, because petitioner had
already (and in defiance of EPA’s action) issued Cominco a
PSD permit. Pet. App. 19a; J.A. 300.

B. BACT Is Integral to the Act and Is a Bind-
ing National “Requirement.”
Confronted with statutory language plainly authoriz-

ing EPA to enforce PSD “requirements” and requiring new
and modified major emitting sources to install BACT,

12

petitioner is forced to argue that the “only ‘BACT require-
ment’ pertinent here” is the requirement that a permit
“contain a BACT limitation devised by the state after
considering the applicable factors.” Pet. Br. 22. Petitioner
thus maintains that as long as the state reaches some
BACT determination and complies with the PSD permit-
ting procedures, and as long as the facility will not exceed
the governing ambient air quality standards (such as the
PSD increments and NAAQS), the state has necessarily
complied with the Act. Pet. Br. 22-23. As for the substance
of the BACT requirement, petitioner’s position is: De
gustibus non est disputandem. The BACT determination,
petitioner asserts, is fraught with “case-specific policy
judgments” that make it as subjective and standardless as
“asking different people to pick the ‘best’ car.” Pet. Br. 24.
All this bears little resemblance to that requirement as
established by Congress. Reading petitioner’s account, one
might forget that the Act “requires” BACT in order “to mini-
mize emissions.” S. Rep. No. 95-127 at 29 (1977). It does not
subject facilities to “whatever-technology-the-state-adopts-
after-holding-a-hearing-and-discussing-the-statutory-factors.”
Cf. Vermont Yonkee Nuclear Power Corp. v. NRDC, 435
U.S. 519, 55° (1978) (noting “essentially procedural”
nature of Natio: a. Unvironmental Policy Act, 42 U.S.C.
§§ 4321 et seg.). 1c.ead, it subjects facilities to “the best
available control .<.unology,” 42 U.S.C. § 7475(aX4). The
text rebuts petitioner’s claim (Br. 25-26) that the BACT
standard is one of uncabined subjectivity: BACT is “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 such facility[.]” 42
U.S.C. § 7479(3) (emphases added). The strong, normative
terms “maximum” and “achievable” — also used in the 1977
amendments’ standards for new sources in nonattainment
areas, 42 U.S.C. §§ 7501(3), 7503(aX2) (“lowest achievable
emission rate”), and the Act’s technology-based standard for
hazardous emissions (42 U.S.C. §7412(dX2) (“maximum

13

degree of reduction * ** achievable”) — are inconsistent
with petitioner’s reading of BACT as inviting the freedom
and even caprice of consumers making automoiive pur-
chases.

When the 95th Congress wanted to restrict EPA's
authority to enforcing “procedural” requirements, it knew
how to say so. See 42 U.S.C. § 7474(b)(2) (EPA may reject
state’s redesignation of PSD area classification if “such
redesignation does not meet the procedural requirements
of this section”). No such limitation, however, is found in
Sections 113(a) or 167.“ This is unsurprising: Given
BACT’s centrality to the PSD program, it would have been
odd for Congress to have empowered EPA to block con-
struction due to a faulty hearing but not an arbitrary
choice of control technology.

Petitioner’s understanding (Br. 22) of the BACT
“requirement” as purely procedural is not shared by the
courts, administrative agencies, or Congress. The leading
decision refers to “BACT requirements” and to BACT as
“[ojne of the principal substantive prerequisites to obtain-
ing a PSD permit,” Alabama Power Co. v. Costle, 636 F.2d
323, 358, 407 (D.C. Cir. 1980); EPA’s and petitioner’s
regulations refer to “BACT requirements,” e.g., 40 C.F.R.
§§ 51.166(s)(4); 52.21(v\4); 18 AAC. 50.375, and the 1977
Senate Report refers to BACT (S. Rep. No. 95-127 at 12) as
a “national requirement” and confirms that EPA may “go
to court to stop a permit for activities which *** did
not comply with the requirements of this section, including
the use of best available control technology.” BACT is a

“ The Title V provisions authorizing EPA to block proposed
operating permits, 42 U.S.C. § 7661d(b), similarly fail to restrict EPA to
“procedural” violations of the PSD provisions, indicating that Congress
in 1990 did not accept petitioner’s view that the substance of BACT
determinations lies within the “sole discretion” of the state.

14

substantive standard that states consenting to implement
the PSD program must apply, not just consider. Cf. FERC
v. Mississippi, 456 U.S. 742, 764 (1982). It is no less a
“requirement” than the Act’s other technology-forcing
obligations, like “lowest achievable emission rate,” 42
U.S.C. § 7503(a)(2), or “best system of emission reduction
* * * adequately demonstrated,” id. § 7411(a).

While making liberal use of the 1977 legislative
history for the undisputed point that states with approved
PSD programs determine BACT (Pet. Br. 18, 30-33),
petitioner ignores passages that expressly confirm EPA's
oversight and enforcement authority. The same 1977
Senate Report that rates a “passim” in petitioner’s brief
explains that:

The [EPA] Administrator’s role is one of monitor-
ing state actions. States have authority to issue
construction permits to new major emitting facili-
ties in clean air areas. The Administrator thus
could go to court to stop a permit for activities
which would exceed the increments of pollution or
which otherwise did not comply with the re-
quirements of this section [setting forth the PSD
program], including the use of best available con-
trol technology. But the Administrator could not
and should not attempt to burden this section
with unnecessary regulations and guidelines.
The Administrator should tell the States the ba-
sis for his review. When asked, [EPA] should be-
come involved at an early date in particularly
difficult permit applications so that States and
localities will know of any potential differences.

S. Rep. No. 95-127 at 12 (emphasis added).

* See also S. Rep. No. 95-127 at 36 (Administrator may take
“measures that would be necessary to prevent the issuance of a permit
(Continued on following page)

7 AOD OR ED eee ET >

15

Despite statutory text and legislative history confirm-
ing EPA's enforcement authority, petitioner insists the PSD
program is part of an “overall approach” (Br. 26) in the Act in
which EPA sets “national standards to achieve and maintain
clean air,” and states “decide how to allocate the available
increments among competing sources.” Pet. Br. 17. Similarly,
petitioner argues (Br. 27), the PSD increments are analo-
gous to the NAAQS and the BACT determination resem-
bles states’ authority under the 1970 amendments to select
“whatever” controls they choose (Train, 421 U.S. at 79) for
existing sources as long as the federal air quality stan-
dards are satisfied.

For new and modified facilities, the Act’s “overall
approach” has never been as petitioner describes. To the
contrary, the 1970 amendments not only established the
nationwide NSPS (supra, p. 4), but also called for technol-
ogy-forcing emissions limitations for hazardous air pollut-
ants (as amended, 42 U.S.C. § 7412), automobiles (42 U.S.C.
§§ 7521-7544), and aircraft (42 U.S.C. § 7571). In 1977,
Congress added new national, technology-based standards
for new and modified stationary sources in both “clean air”
areas, supra, pp. 5-7, and nonattainment areas, 42 U.S.C.
§ 7502(c).* A structure combining technology-forcing federal

for a new source if it did not comply with the [PSD] requirements”);
H.R. Rep. No. 95-564 at 153 (1977) (“The Administrator shall issue
orders and seek other action to prevent the issuance of an improper
permit.”). As Senator Muskie put it: “Once a State adopts a permit
process in compliance with this provision, [EPA's] role is to seek
injunctive relief or other judicial relief to assure compliance with the
law.” 123 Cong. Rec. S9169 (daily ed. June 8, 1977).

* Petitioner is again off the mark when it suggests (Br. 26-27) that
the early NAAQS/SIP model represents some universal template for
federal-state relations under the federal environmental statutes. Federal-
state relationships vary enormously both between statutes and within
particular statutory schemes on basic matters like standard-setting,

(Continued on following page)

16

standards and optional state implementation backed by
EPA enforcement authority — rather than open-ended state
discretion — has been the Act’s “overall approach” for new
and modified sources.

Mischaracterizing BACT as (at best) a mechanism for
states to meet the PSD increments, petitioner disregards
the intended function of the BACT requirement and its
centrality to the PSD program. The 1977 amendments
establish a “national requirement that each new major
facility to be located in a clean air area install the best
available control technology.” S. Rep. No. 95-127 at 12
(emphasis added). Facilities’ obligation to install BACT is
separate and distinct from their obligation to comply with
the PSD increments: Each major emitting source that
complies with the increments must also implement BACT.
See 42 U.S.C. §7475(a).” Because pollution controls
“ultimately determine the emissions from a source, an
accurate BACT analysis is essential to a successful PSD
review.” National Comm’n on Air Quality (““NCAQ”), To

program approval and revocation, permitting authority, enforcement,
and preemption. See Symposium: Environmental Federalism, 54 Md. L.
Rev. 1141 (1995).

" Reviewing a state’s BACT determination, EPA Administrator
Reilly rejected a similar argument, explaining that the Act “separates
issues of overall air quality from issues of technology” and that, in
contrast to the requirements that facilities comply with the increments,
BACT is “principally a technology-forcing measure that is intended to
foster rapid adoption of improvements in control technology.” In re
Columbia Gulf Transmission Co., PSD Appeal No. 88-11, 1989 WL
266361 (E.A.B. 1989). “Both of these provisions,” the Administrator
explained, “must be satisfied by an applicant seeking a PSD permit,
and compliance with one provision does not relieve or lessen an
applicant’s burden of complying fully with the other.” Jd.

a PP SORES ie ioe as —_—s

RL Sa SRE PERE 8 8 Py Sie

17

Breathe Clean Air at 157 (1981). BACT was specifically
intended to produce pollution control beyond that neces-
sary to meet the PSD increments: As explained in the
Senate Report, BACT would compel the “rapid adoption of
improvements in technology as new sources are built,”
while the increments would operate as a “second level of
protection” and a “second stimulant to improved controls”
on air pollution. S. Rep. No. 95-127 at 18.” Petitioner’s
treatment of BACT goes far toward reading it out of the
statute.

An independent BACT requirement is essential to
maintaining the increments themselves. Congress adopted
BACT in part to “minimize the consumption of PSD
increments and thus expand the affected area’s potential
for future economic growth.” NCAQ, To Breathe Clean Air
at 157. “If the allocation were left entirely to the states,
they might give the whole pie to the first comers and
create irresistible pressures to relax the ambient limits
themselves.” Currie, Air Pollution, § 7.08 at 7-21. See also
122 Cong. Rec. S3905 (March 22, 1976) (BACT would
“prevent the first source moving into an area from using
up the full increment”) (quoting article by Sen. Domenici);
S. Rep. No. 95-127 at 31.”

* The NCAQ was established by 1977 amendments to undertake
an independent analysis of air pollution programs. 91 Stat. 685, 785
(1977).

" By prescribing the category-wide NSPS as a minimum for BACT,
42 U.S.C. § 74793), the statutory PSD program ended EPA's prior
practice of equating BACT with NSPS. See Craig N. Oren, » Coarng the
Air, 9 Va. Envtl. L.J. 45, 75 (1989).

* Indeed, the NCAQ found that “a program requiring best avail-
able control technology alone (without the increment system) would
result in emissions growth equivalent to that obtained through the current
program with increments, if best available control technology determina-
tions were made in a manner consistent with its current definition.”
NCAQ, To Breathe Clean Air at 23. See Rodgers, Environmental Law, at

(Continued on following page)

18

Congress intended BACT, as “[pJossibly the most
important” of the 1977 Act’s many technology-fostering
measures, to spur “improvements in the technology of
pollution control.” Petitioner’s treatment of BACT as a
“subjective” appeal to states’ “sole discretion” ignores the
technology-forcing philosophy that was “fundamental” to
the adoption of BACT and congressional efforts through-
out the 1977 amendments “to accelerate technological
innovation in the control of air pollution.” S. Rep. No. 95-
127 at 10. Ascheme that gave states unfettered discretion
to adopt pollution control technologies for particular
sources would not perform this vital “forcing” function. See
Union Elec., 427 U.S. at 257. Had BACT been left to
states’ “sole discretion” (Pet. Br. 27), it would. have done
little. Before 1977, states already had ample authority
under their police powers and the CAA’s savings clause (42
U.S.C. § 7416) to impose more stringent emissions limita-
tions on new and modified sources in clean air areas. A
federally unenforceable invitation to consider various
factors would have provided states no new incentive to
force development of new control technologies.

Petitioner’s approach is also at odds with Congress's
intent through the PSD program to insure that “economic

375-76 (NCAQ study suggests that “BACT is the cake and the incre-
ments the mere frosting”).

* S. Rep. No. 95-127 at 17-18. See 42 U.S.C. §§ 7501(3), 7503(a)(2)
(“lowest achievable emission rate” for new sources in nonattainment
areas), 7502(c)1) (“reasonably available control technology” for existing
sources in nonattainment areas), 7491(g)(2) (requiring “best available
retrofit technology” for existing sources impairing visibility in national
parks and certain other clean air areas); In re Columbia Gulf Transmis-
sion Co., 1989 WL 266361 at *3 (discussing BACT’s “technology-forcing”
role). The Senate Report noted that the technology-forcing provisions of
the 1970 amendments had brought about “positive changes” by
stimulating “more effective, less-costly systems to control air pollution.”
S. Rep. No. 95-127 at 17-18.

19

growth will occur in a manner consistent with the preser-
vation of existing clean air resources,” 42 U.S.C. § 7470(3),
and “to prevent competition for industry to be waged
among States on the basis of air quality.” H.R. Rep. No. 95-
294 at 141 (1977). See Hodel v. Virginia Surface Min. and
Reclamation Ass’n, Inc., 452 U.S. 264, 282 (1981). “With-
out national guidelines for the prevention of significant
deterioration,” legislators feared, firms would “play one
State off against another with threats to locate in which-
ever State adopts the most permissive pollution controls.”
H.R. Rep. No. 95-294 at 134. The PSD program was
intended to forestall a “flight of industry — and jobs” from
dirty-air to relatively clean air areas, and “to protect
States choosing to retain clean air resources from ‘envi-
ronmental blackmail’ by industrial sources that may
attempt to play one State off another with threats to locate
or relocate plants in States with weaker environmental
requirements.” Jd. at 133, 140. Leaving the states, as
petitioner urges, with “sole discretion” to select their own
version of the “best” technology would reinforce the inter-
jurisdictional pressures Congress was trying to restrain.
State permitting authorities would scarcely take an
ambitious view of what level of control technology is
“achievabie” if they knew that competing states had “sole
discretion” to choose their own versions of BACT. Indeed,
the National League of Cities and the National League of
Counties supported the 1977 PSD legislation precisely
because of “the competitive struggle that exists among
States and localities for new industry.” H.R. Rep. No. 95-
294 at 133, 135, 152, 202.

Finally, giving states “sole discretion” over the sub-
stance of control technology choices is in tension with
Congress’s intent through the PSD program to protect
federal parklands, wilderness areas, and other areas of
“special national or regional *** value,” 42 U.S.C.
§ 7470(2), as well as the air resources of neighboring
states, id. § 7470(4). See Craig N. Oren, The Protection of
Parklands from Air Pollution: A Look at Current Policy, 13
Harv. Envtl. L. Rev. 313, 321-27 (1989). Congress had

20

time-tested reasons to provide for a federal “backup” role
regarding state BACT determinations: States have limited
incentives to protect resources belonging to the nation as a
whole or to other states. See Missouri v. Holland, 252 U.S.
416, 435 (1920); Missouri v. Illinois, 200 U.S. 496, 520-21
(1906); McCulloch v. Maryland, 17 U.S. 316, 431-35
(1819). See also 42 U.S.C. § 7474(b) (federal land man-
ager’s role in state reclassification decisions). By denying
federal enforcement authority, petitioner again attributes
to Congress a “conspicuous[] fail{ure]” to “provide EPA
with the authority needed to achieve the statutory goals.”
E.l. Du Pont De Nemours & Co. v. Train, 430 U.S. 112, 133

(1977).”

C. The “Case-by-Case” Nature of Permitting
Authorities’ BACT Determinations Does
Not Defeat EPA’s Enforcement Authority.

Despite the plain statutory language establishing
EPA’s authority to enforce PSD requirements, peti ‘ioner
attempts to create an exemption to the text by argui ig (Br.
21-22, 28-29) that the “case-by-case” nature of the BACT
determination shows that Congress intended to commit
the substance of BACT entirely to states. But, in fact, the
facility-specific BACT inquiry was intended to produce
more effective pollution control and accommodate local
differences in raw materials or plant configuration that
might make a technology “unavailable” in a particular
area. Case-by-case BACT evaluation ensures that permits

* The importance of a federal oversight role is particularly apt in
this case: The Red Dog Mine is located in an otherwise pristine and
scenic region of Alaska, five miles from the Noatak National Preserve,
which protects a spectacular mountain-ringed river basin containing an
intact Arctic ecosystem. According to the National Park Service, which
is responsible for managing the Preserve, vegetation in the area is
likely to be sensitive to nitrogen deposition. See J.A. 228, 284.

21

incorporate “the latest technological developments,” in
contrast to “the stagnation that occurs when everyone
works against a single national standard for a new
source.” S. Rep. No. 95-127 at 18. Whereas the rigid NSPS
standard “must take into account what is best for the
weakest performer in a category,” case-by-case identifica-
tion of BACT “can take advantage of the control potential
of the particular proposed source.” Oren, PSD, 74 Iowa L.
Rev. at 33. It was not intended to give states “sole discre-
tion” to subordinate air quality to other priorities.

BACT determinations are guided by administrable
factors —- “maximum” pollution reductions, consideration of
energy, environmental, and economic impacts, and speci-
fied abatement techniques. 42 U.S.C. § 7479(3). The case-
by-case application of these factors resembles other de-
terminations that agencies and courts regularly confront;
it may not always point to a “single, objectively ‘correct’
BACT determination” (Pet. Br. 23), but it does rule out a
range of unreasonable determinations that if adopted
present appropriate occasions for EPA action. Certainly
nothing about BACT makes it so unsuited to EPA review
as to require the manufacture of an implied exception to
EPA's enforcement authority.

Similarly groundless is petitioner’s effort (Br. 25) to
elicit from Congress’s reference to the “permitting author-
ity” — usually the state, but not infrequently EPA itself -
an implied intent to preclude EPA enforcement. Had
Congress wished to foreclose EPA oversight, it readily
could have so provided. But Sections 113(aX5) and 167
empower EPA to enforce the “requirements” of the PSD
provisions, and neither contains any limitation for BACT
or for state-issued permits. To be sure, Congress intended
to allow states with EPA-approved PSD programs to

22

determine BACT for individual sources, a function
previously performed by EPA alone (S. Rep. No. 95-127 at
8).” But it does not follow that Congress thereby intended
to exempt states from EPA enforcement. Sections 113(aX5)
and 167 show that it did not. See also S. Rep. No. 95-127
at 36 (“Once the State submits an adequate [PSD pro-
gram], [EPA’s] role is restricted to assuring compliance
with the law.”).

D. EPA Has Understood its Limited Role in
Reviewing State PSD Determinations, and
Disavowed any Power to “Second-Guess”
Reasonable State BACT Determinations.

Petitioner is off the mark when it accuses EPA of
asserting a power to “second-guess” petitioner's BACT
determination. See Pet. Br. i, 21, 35. EPA has long ac-
knowledged that its enforcement authority respecting
BACT is circumscribed. Memorandum from Michael S.
Alushin, Associate Enforcement Counsel for Air (July 15,
1988) (J.A. 272-73) (recognizing that BACT determination
involves “the exercise of judgment,” but stating that EPA
may pursue enforcement action if determination is “not
based on a reasonable analysis”). EPA has disavowed any
power to “second-guess” state BACT determinations, and
has repeatedly acknowledged its limited oversight and

* EPA has not contended that Sections 113(a) and 167 “require
EPA approval” (Pet. Br. 25) of state BACT determinations. Instead of
requiring EPA to approve BACT determinations, Sections 113(aX5) and
167 authorize EPA to act in those rare instances when a state has acted
arbitrarily. See, e.g., 57 Fed. Reg. 28,093 (June 24, 1992) (“EPA ac-
knowledges that states have the primary role in administering and
enforcing the various components of the PSD program. States have
been largely successful in this effort, and EPA’s involvement in inter-
pretative and enforcement issues is limited to only a smal] number of
cases.”).

—

o_— -

23

enforcement role.” It adhered to that limited role here,
explaining why petitioner's BACT determination was
“arbitrary” and contrary to petitioner’s own findings. J.A.
149-50. EPA’s limited but vital role in enforcing BACT is
consistent with a scheme that “places primary responsi-
bilities and authority with the States, backed by the
Federal Government.” S. Rep. No. 95-127 at 29.

Nor is there merit to petitioner’s warning that EPA
could upset state BACT determinations “months, even
years, after a permit has been issued.” Pet. Br. 35. EPA’s
exercise of its enforcement powers is subject to judicial
review. See 42 U.S.C. §§ 7607(b)\(1), 7413(b). EPA could not
engage in the conduct hypothesized by petitioner while the
federal courts sit to review EPA's actions. See Panhandle
Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223 (1928)
(Holmes, J., dissenting). Cf. United States v. AM General
Corp., 34 F.3d 472, 475 (7th Cir. 1994) (upholding dis-
missal of enforcement action where EPA did not act until
well after facility received PSD permit and completed
plant modifications).

* As it noted in approving Virginia's PSD program, “EPA may not
intrude upon the significant discretion granted to states under new
source review programs, and will not ‘second guess’ state decisions.” 63
Fed. Reg. 13,795, 13,796 (March 23, 1998). EPA inquires whether the
State’s decision rested “on reasonable grounds properly supported on
the record, described in enforceable terms, and consistent with all
applicable requirements.” Jd. See also, e.g., 58 Fed. Reg. 15,422, 15,426
(March 23, 1993).

24

E. Relegating EPA to an Appeal Before a State
Agency or Court Is Inconsistent With the
Statute and Would Create an Ungainly Pro-

cedure for EPA Oversight and Enforce-
ment.

There is nothing unduly “awkward[]” (Pet. Br. 19)
about Congress’s decision to subject states’ decisions in
implementing the PSD program to EPA's oversight and
enforcement authority, to be followed by an opportunity for
federal judicial review of any final EPA actions in particu-
lar instances. Such policy considerations are no defense
against plain statutory language. See 42 USC.
§§ 7413(aX5), 7477; Rodgers, Environmental Law, § 3.36
at 523 (“For better or worse, this forum that places EPA in
an appellate position reviewing ‘major’ state permits is the
principal source of recorded law on compliance orders.”)

Nor is there anything unusual about authorizing EPA
(subject to judicial review) to oversee state implementation
of the BACT requirement. Similar federal oversight roles
abound under the CAA and other federal statutes. EPA
reviews SIPs, and federal courts of appeals then review
EPA’s actions, see 42 U.S.C. §7410(a), (k); 42 U.S.C.
§ 7607(b\(1); Union Elec., 427 U.S. at 252, even though
those state plans involve discretion-laden policy judg-
ments. Section 209(b\1) of the CAA provides that the
Administrator shall deny a state’s request for a waiver of
the Act’s preemption of state auto emissions standards if
EPA concludes that the state’s determination that condi-
tions for a waiver exist is “arbitrary and capricious,” 42
U.S.C. § 7543(bX 1). See Motor and Equipment Mfrs. Ass’n,
Inc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979). Under the
Clean Water Act, federal courts review EPA's decisions to
approve or set aside state-promulgated water quality
standards. See 33 U.S.C. § 1313(c); American Widdlands v.
Browner, 260 F.3d 1192, 1196 (10th Cir. 2001).

Indeed, it is petitioner’s alternative enforcement
scheme that diverges from the norm under federal envi-
ronmental laws. Petitioner (Br. 23) acknowledges that EPA

ae eee ~

25

itself can take “appropriate action” under Sections
113(aX5) and 167 when a state has failed to issue any
BACT determination; granted a permit that allows viola-
tions of NSPS or ambient standards; denied a hearing; or
failed to conduct the statutorily required analysis of the
proposed source. After a discreet interval of pages, how-
ever, petitioner asserts (Br. 36) that, if EPA disputes the
substance of a state BACT determination, its only recourse
is to file a state administrative appeal and seek review in
state court. Petitioner does not explain whether the state
court then would apply federal law, some unspecified state
law, or whether (as petitioner elsewhere suggests, Pet. Br.
24-25) the BACT definition simply has no legally binding
substance (rendering any appeal a fool's errand). In any
event, petitioner complains (Br. 19, 36, 37) that EPA
improperly “bypassed” or “short-circuited” this putative
review scheme.

Congress has not traditionally been in the practice of
subjecting federal agencies charged with enforcing federal
law to exclusive state jurisdiction. Cf AT&T Corp. v. Iowa
Utilities Bd., 525 U.S. 366, 378 n.6, 385 n.10 (1999).”
Among other defects, petitioner’s approach would require
EPA to litigate in two fora at once — federal courts for
procedural violations, and state courts for claims of sub-
stantively unlawful misapplications of the BACT stan-
dard. Such a scheme would hardly conduce to “certainty

- We are aware of no comparable regime in any federal environ-
mental statute. The McCarran Amendment, 43 U.S.C. § 666, contains
an express waiver of federal immunity and rests on considerations
unique to general water rights adjudications. See Arizona v. San Carlos
Apache Tribe, 463 U.S. 545, 571 (1983). State water quality certifica-
tions under Section 401 of the Clean Water Act are reviewable only in
state court, but Section 401 expressly incorporates state law, 33 U.S.C.
§ 1341(d). See PUD No. 1 of Jefferson County v. Washington Dep't of
Ecology, 511 U.S. 700 (1994). BACT determinations, by contrast, rest
exclusively on federal law.

26

and finality’ or “cl{arity]” (Pet. Br. 35, 36) in the permit-
ting process. The statute refutes petitioner’s contention
that the same Congress committed the core of the BACT
decision — the choice of control technology and explanation
for that choice — to the unreviewable discretion of state

agencies and courts.”

Il. EPA PROPERLY DETERMINED THAT THE
PERMIT ISSUED BY PETITIONER IS ARBI-
TRARY AND INCONSISTENT WITH THE ACT

The question presented is whether EPA has the
“authority” to take enforcement action with respect to the
Red Dog PSD permit. Pet. i. As demonstrated, the answer
to that question is affirmative. The Court need not reach
the further issue whether EPA properly exercised its
authority on the facts here. If the Court does address that
issue, however, petitioner’s own reasoning demonstrates
that its BACT determination for MG-17 violated the
statute. Under the top-down approach petitioner pur-
ported to apply, see J.A. 62, 109, 176, petitioner repeatedly
determined, and still does not dispute, that SCR is be-
tween two and three times as effective as “Low NOx”
technology at reducing NOx emissions. See J.A. 188-89
(SCR achieves 80-90% reductions in emissions); J.A. 191
(30% for Low NOx); see also J.A. 65, 110, 181. Tracking the
statutory factors, 42 U.S.C. § 74793), top-down analysis
proceeds to consider whether the top-ranked technology is

* 42 U.S.C. §§ 7413(aX5), 7477. See also S. Rep. No. 95-127 at 12.
Petitioner also points (Br. 38) to language ensuring “interested persons
including representatives of the Administrator” an opportunity to
participate in PSD permit hearings. 42 U.S.C. § 7475(aX2). This
language guarantees EPA a chance to participate in state hearings,
thereby encouraging early mediation of any disagreements with the
state. See S. Rep. No. 95-127 at 12. It does not, however, purport to
limit the enforcement authorities described in Sections 113(aX5) and
167.

27

technically and economically feasible. Petitioner estab-
lished that SCR was technically feasible and never devi-
ated from this finding. See J.A. 65, 80, 181.” On May 4,
1999, petitioner found that SCR was also economically
feasible, with a control cost effectiveness of about $1600
per ton, well within the established range for NOx BACT
determinations. J.A. 83.

At Cominco’s urging, however, petitioner reversed
course in its September 1, 1999 report, this time deeming
SCR’s costs “excessive.” J.A. 116. Petitioner, however,
never significantly altered its estimate that SCR cost-
effectiveness was about $2000 per ton nor disputed that
this value fell within the established range for NOx BACT.
J.A. 113, 204. Cominco never presented any evidence that
the capital cost of SCR would seriously impair the profit-
ability of the mine, and refused to provide this information
when EPA requested it.” In its final report, petitioner
stated that “[aJnother perhaps better way to determine
BACT is for the applicant to present detailed financial
information showing its effect on the operation. However,

* In its September 28, 1999 letter to petitioner, EPA informed
petitioner that Wartsila, the manufacturer of Cominco’s generators, had
provided it with a list of 33 facilities that had installed SCR on more
than 50 of their engines. J.A. 124.

* It is not self-evident that installing SCR would adversely affect
Cominco’s “competitiveness,” let alone the regional economy. Cominco’s
1999 annual report lists its revenues as $1.645 billion, and its operating
profits from zinc operations as $234 million. See 1999 Annual Report,
available at http//www.teckcominco.com/investors/reports/clt/clt-99-ar.
pdf (last visited June 26, 2003). The report described the Red Dog Mine
as the company’s “flagship operation,” holding “approximately 23% of
the world’s zinc mine reserves,” the “largest and richest ever discov-
ered,” and “key” to Cominco’s “strategic efforts to become the world’s
lowest cost and most profitable zinc producer.” Jd. at p. 2. Teck-
Cominco’s annual report lists its 2002 revenues as $2.187 billion. See
2002 Annual Report, available at http//www.teckcominco.com/investors/
reports/ar2002/tc-2002-highlights.pdf (last visited June 26, 2003).

28

the applicant did not present this information. Therefore,
no judgment can be made as to the impact of a $2.1 million
control cost on the operation, profitability, and competi-
tiveness of the Red Dog Mine.” J.A. 116; see also J.A. 207.

To explain its about-face, petitioner stated that
Cominco’s mine provides jobs in a depressed region, and
that the ongoing expansion ensured that it “will continue
to influence and benefit the residents and the economy of
this region.” J.A. 208.” Petitioner explained that it had
“chosen to consider the direct cost of SCR technology and
its relationship to retaining the Mine’s world competitive-
ness as it relates to community socioeconomic impacts for
the foremost consideration to judge economic impacts.
J.A. 208. In this opaque language lurk rationales that
would, if tolerated, eviscerate the PSD program. First,
petitioner’s reliance on competitiveness impacts and job
losses was baseless given its statement a page earlier that
“no judgment can be made as to the impact of a $2.1
million control cost on the operation, profitability, and

® Petitioner (Br. 13) also reprises an argument it expressly rejected
in the permitting proceedings, namely, that Cominco’s agreement to
install Low NOx on existing generators MG 1, 2, 3, and 5, meant that
the net emissions of the project as permitted were lower than if
Ceminco had installed SCR on MG 17 only. As EPA explained (J.A. 96-
97) and as petitioner acknowledged (J.A. 111-12, 199), the CAA and
implementing regulations do not allow for such an approach. “Netting”
can be used to exempt modified sources from PSD review requirements
if there will be no significant project-wide increase in emissions. See 40
C.F.R. § 51.166(bX3), 40 C.F.R. a pacer oye Cominco CO, however, =

roposing an expansion that would result in a net increase in

a sn of 1100 tons per year. J.A. 169. (The BACT threshold for NOx
emissions is 40 tons per year.) Furthermore, Cominco had an independ-
ent legal imperative to install Low NOx controls on units 1,2,3 and 5.
Once Cominco sought to have the operating caps removed from these
units, leading to pollution increases, it had to use low-NOx technology
to keep pollution from these units below previously permitted levels.
J.A. 139. Had Cominco declined to do so, these units would have been
independently subject to BACT. J.A. 129, 139.

29

competitiveness of the Red Dog Mine.” J.A. 207. More
fundamentally, petitioner’s stated grounds for decision are
contrary to the statute’s focus on what is “achievable” and
BACT’s intended function as a meaningful technology-
forcing standard to counter interstate competitive pres-
sures to lower air quality requirements. Supra, p.19.

If states could reject effective and “available” tech-
nologies based on undocumented claims about “boost[ing]”
the local economy and “world competitiveness” (J.A. 207-
208), the BACT requirement would mean little. Surely
most “major emitting facilities” - which by definition emit
hundreds of tons of pollutants per year, see 42 U.S.C.
§ 7479(1), and under the instant permit, almost 4000 tons
per year of NOx, J.A. 156-57 — are subject to “world
competition.” By relying on the massive Red Dog facility’s
“socioeconomic impacts,” petitioner flouted Congress’
intent in the PSD program “to identify facilities which,
due to their size, are financially able to bear the substan-
tial regulatory costs imposed by the PSD provisions and
which, as a group, are primarily responsible for emissions
of the deleterious pollutants that befoul our nation’s air.”
Alabama Power, 636 F.2d at 353. The Act cannot be read to
excuse facilities from installing effective contro] technology
by invoking competitive conditions that are ubiquitous in a
market economy.

Petitioner changed course based on a desire to “sup-
port Cominco’s Red Dog Mine Production Rate Increase
Project, and its contributions to the region” and to reward
Cominco for its “unique and continuing impact on the
economic diversity of this region[.]” J.A. 208. Whatever the
precise contours of permitting authorities’ discretion,
concerns like these cannot be lawful rationales to reject
otherwise more effective and available control technolo-
gies. States then would have unbridled discretion to adopt
dramatically less effective control technologies based on a
bare desire to reward local businesses. Petitioner’s solici-
tude for a local company at the expense of air quality
illustrates the kinds of local pressures that led Congress to

30

impose BACT as a “national requirement,” supra, p. 16,
and stands as an example of why the EPA enforcement
authority expressly provided for in Sections 113(a) and 167
of the Act is essential in maintaining the integrity of the
PSD program.

CONCLUSION

The judgment of the court of appeals should be af-
firmed.

Respectfully submitted,
MICHAEL C. LEVINE SEAN H. DONAHUE
EARTHJUSTICE Counsel of Record
325 Fourth Street WASHINGTON AND LEE
Juneau, Alaska 99801 UNIVERSITY SCHOOL
(907) 586-2751 OF LAW
Admitted to practice only Lexington, Virginia 24450
in California (540) 458-8400
ELIZABETH A. FAYAD VICKIE L. PATTON
NATIONAL PARKS ENVIRONMENTAL DEFENSE
CONSERVATION ASSOCIATION 2334 North Broadway
1300 19th Street, N.W., Boulder, Colorado 80304
Suite 300 (303) 440-4901
Washington, D.C. 20036
(202) 454-3306

Counsel for Amici Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0615%3A20. Public record. Not legal advice.