Alaska Department of Environmental Conservation v. Environmental Protection Agency

2004-01-21

Headline: EPA allowed to block construction when a State's best available control technology decision is unreasonable, expanding federal oversight and limiting state permitting autonomy for industrial projects such as the Alaska mine expansion.

Holding:

Real World Impact:

Allows EPA to issue stop-construction orders when a State's BACT decision lacks reasoned support.
Raises the importance of thorough, source-specific economic records in state permit proceedings.
Increases federal oversight over state permitting, affecting companies planning major industrial projects.

Topics: air permitting, pollution controls, federal environmental enforcement, state-federal relations

Summary

Background

ADEC, the State agency, EPA, and Teck Cominco (operator of the Red Dog zinc mine) disputed the pollution controls required for a planned generator at the mine. Cominco proposed a less stringent Low NOx control while ADEC initially identified selective catalytic reduction (SCR) as most effective but later approved Low NOx without a detailed economic record. EPA issued stop-construction orders under two Clean Air Act provisions, challenging ADEC’s BACT finding.

Reasoning

The central question was whether EPA may review and block a State’s BACT (best available control technology) permit decision when that decision is unreasonable under the Act’s guides. The Court held that Congress gave EPA supervisory authority in CAA §§113(a)(5) and 167 to ensure BACT determinations are reasoned and faithful to statutory factors. The Court explained EPA’s role is limited: it may intervene only when a state’s BACT lacks a reasoned, record-supported justification.

Real world impact

The ruling affirms that EPA can issue stop-construction orders and review state permitting when a BACT choice lacks evidentiary support, increasing federal oversight of state permits. Companies seeking large permits face greater risk of federal intervention unless a strong, source-specific record supports the state’s BACT choice. The opinion also leaves room for states to cure record gaps and reissue permits, and courts will review whether a state’s decision was reasonable.

Dissents or concurrances

Justice Kennedy dissented, arguing the statute vests final BACT determinations with States and EPA exceeded its power by overturning a state permitting decision without using state administrative and judicial review. The dissent warned the decision undermines cooperative federalism and could subject state decisions to repeated federal second-guessing.