Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004)

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certiorari to the united states court of appeals for the ninth circuit

No. 02-658. Argued October 8, 2003—Decided January 21, 2004

The Clean Air Act's (CAA or Act) Prevention of Significant Deterioration (PSD) program, 42 U. S. C. 7477, was designed to ensure that the air quality in "attainment areas," i. e., areas that are already "clean," will not degrade, see 7470(1). The program bars construction of any major air pollutant emitting facility not equipped with "the best available control technology" (BACT). 7475(a)(4). The Act defines BACT as "an emission limitation based on the maximum degree of [pollutant] reduction . . . which the [state] permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility." 7479(3). Two provisions of the Act vest enforcement authority in the Environmental Protection Agency (EPA or Agency). Section 113(a)(5) generally authorizes the EPA, when it finds that a State is not complying with a CAA "requirement" governing construction of a pollutant source, to pursue remedial action, including issuance of "an order prohibiting the construction." 42 U. S. C. 7413(a). Directed specifically to the PSD program, CAA 167 instructs EPA to "take such measures, including issuance of an order, . . . as necessary to prevent the construction" of a major pollutant emitting facility that does not conform to the "requirements" of the program. Because EPA has classified northwest Alaska, the region here at issue, as an attainment area for nitrogen dioxide, the PSD program applies to emissions of that pollutant in the region. No "major emitting facility," including any source emitting more than 250 tons of nitrogen oxides per year, 7479(1), may be constructed or modified unless a PSD permit has been issued for the facility, 7475(a)(1). A PSD permit may not issue unless the proposed facility is subject to BACT for each CAA-regulated pollutant emitted from the facility. 7475(a)(4).

In this case, "the permitting authority" under 7479(3) is Alaska, acting through petitioner, the Alaska Department of Environmental Conservation (ADEC). In 1988, Teck Cominco Alaska Inc. (Cominco) obtained authorization to operate a zinc concentrate mine in northwest Alaska. The mine is a "major emitting facility" under 7475. Its ini-


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