Alaska Dept. of Environmental Conserv. v. EPA

PETITIONER:Alaska Department of Environmental Conservation
RESPONDENT:Environmental Protection Agency, et al.
LOCATION:Guantanamo Bay, Cuba

DOCKET NO.: 02-658
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 540 US 461 (2004)
GRANTED: Feb 24, 2003
ARGUED: Oct 08, 2003
DECIDED: Jan 21, 2004

Deputy Solicitor General Hungar – argued the cause for respondents
Jonathan S. Franklin – argued the cause for Petitioner
Thomas G. Hungar – argued the cause for Respondent

Facts of the case

Under the Clean Air Act, state agencies must determine the best way to prevent air pollution in areas that have met national clean air standards. In part, they must require that polluting companies use the “best available control technology” to limit pollution whenever they construct new facilities. In 1998, Teck Cominco Alaska, a mining company, requested a permit to build an additional generator at one of its mines. The Alaska Department of Environmental Conservation (ADEC) issued the permit, which called for Cominco to use “Low NOx” technology on all its generators, not just the new one. The Environmental Protection Agency (EPA), however, stepped in, arguing that a better technology was available. ADEC appealed the EPA’s decision to the Ninth Circuit Court of Appeals, arguing that the EPA did not have the right to interfere with the state agency’s decision. The Ninth Circuit sided with the EPA.


Under the Clean Air Act, does the Environmental Protection Agency have the authority to overrule a state agency’s decision that a company is using the “best available controlling technology” to prevent pollution?

Media for Alaska Dept. of Environmental Conserv. v. EPA

Audio Transcription for Oral Argument – October 08, 2003 in Alaska Dept. of Environmental Conserv. v. EPA

Audio Transcription for Opinion Announcement – January 21, 2004 in Alaska Dept. of Environmental Conserv. v. EPA

William H. Rehnquist:

The opinion of the Court in No. 02-658, Alaska Department of Environmental Conservation versus the Environmental Protection Agency will be announced by Justice Ginsburg.

Ruth Bader Ginsburg:

This case concerns the authority of the Environmental Protection Agency or EPA to superintend enforcement of the Clean Air Act.

Two provisions of the Act expansively empower EPA to enforce any of the Act’s requirements.

The requirement at issue relates to the Clean Air Act’s prevention of significant deterioration or PSD program.

As its name indicates, the PSD program is designed to maintain air quality in areas still relatively free of pollution.

PSD provisions require receipt of a permit before constructing or modifying a large air pollutant emitting facility.

To gain a permit, the applicant must show that the insulation is equipped with the best available control technology or for short, BACT.

The Act defines BACT as the technology that results in the maximum degree of pollutant reduction achievable taking account of energy, environmental, and economic factors.

The permit authority in this case, is the petitioner Alaska acting to it, Department of Environmental Conservation.

The question presented, may EPA order construction stopped on a facility when EPA finds that the State permit issuing authority, here, Alaska’s Environmental Department, has unreasonably determined what si the best available technology, the BACT, for that facility.

In December 1999, the Alaska Department issued a permit allowing increase production at the Red Dog Mine, a zinc mine in Northwest Alaska.

The permit authorized additional generative capacity.

As the best available technology or BACT, the Alaska Agency first suggested a method found technically and economically feasible that would reduce emissions from the new installation by 90%.

In the permit given Red Dog however, the Alaska Agency selected as BACT a different cheaper technology, one that would reduce emissions by only 30%.

In justification of that choice, the Alaska Department said that Red Dog’s operation and competitiveness would suffer where the mine forced to use a more expensive technology.

The Alaska Agency acknowledged however, that it could reach no judgment on the economic factors it was to take into account because the mine had refused to provide the State Agency with relevant financial data.

EPA found that the State Agency’s choice of emission control technology lacked evidentiary support and was therefore, unreasonable.

Invoking its statutory enforcement authority, EPA ordered the Red Dog operators to stop construction of the additional generator at the mine.

The State Agency contested both EPA’s authority to issue stop construction orders in general, and EPA’s determination in this case, that the Alaska Department’s choice of emission control technology was unreasonable.

The Court of Appeals for the Ninth Circuit both upheld the Federal Agency’s assertion of supervisory authority generally and concluded in this case that EPA had legitimately exercised its authority when it ordered the Red Dog Mine to stop construction.

We affirm the Ninth Circuit’s judgment.

The Act does not give state permit issuing authorities untethered discretion, rather it confines the State Agency’s choices by directing that an emission control technology selected as BACT must yield the maximum achievable reduction in pollutants taking account of practical considerations listed in the statute.

For reasons detailed in the Court’s opinion, we find the Federal Agency’s reading of the Act fitting and proper.

We therefore, hold that EPA can exercise its supervisory power to block a facility’s construction when a state permit issuing authority makes a BACT determination untethered to the Clean Air Act’s guide and the administrative record.

We further conclude that EPA properly exercised its authority when it stopped construction at the Red Dog Mine.

As EPA found, the Alaska Department’s own records showed that there was scant of any evidentiary basis for choosing the less stringent emission reduction technology.

It remains open to the Alaska Agency however, if that agency elects, to revisit the matter and to establish in the renewed proceedings a satisfactory evidentiary basis for its BACT determination.

Justice Kennedy has filed a dissenting opinion in which the Chief Justice, Justice Scalia, and Justice Thomas joined.