Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 3 (2004)

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Cite as: 540 U. S. 461 (2004)


analogy, and compared SCR's cost to the costs of other, less stringent, control technologies.

EPA then issued three orders to ADEC under 113(a)(5) and 167 of the Act. Those orders prohibited ADEC from issuing a PSD permit to Cominco without satisfactorily documenting why SCR was not BACT for MG-17. In addition, EPA prohibited Cominco from beginning construction or modification activities at the mine, with limited exceptions. Ruling on ADEC's and Cominco's challenges to these orders, the Ninth Circuit held that EPA had authority under 113(a)(5) and 167 to determine the reasonableness or adequacy of the State's justification for its BACT decision. The Court of Appeals emphasized that provision of a reasoned justification for a BACT determination by a permitting authority is undeniably a CAA "requirement." EPA had properly exercised its discretion in issuing the three orders, the Ninth Circuit held, because (1) Cominco failed to demonstrate SCR's economical infeasibility, and (2) ADEC failed to provide a reasoned justification for its elimination of SCR as a control option.

Held: CAA authorizes EPA to stop construction of a major pollutant emitting facility permitted by a state authority when EPA finds that an authority's BACT determination is unreasonable in light of 42 U. S. C. 7479(3)'s prescribed guides. Pp. 483-502. (a) In holding that the EPA orders constituted reviewable "final action" under 7607(b)(1), the Ninth Circuit correctly applied Bennett v. Spear, 520 U. S. 154: To be "final," agency action must "mark the consummation of the agency's decisionmaking process," and must either determine "rights or obligations" or occasion "legal consequences," id., at 177-178. As the Ninth Circuit noted, EPA had asserted its final position on the factual circumstances underpinning the orders. If the orders survived judicial review, Cominco could not escape the practical and legal consequences of any ADEC-permitted construction Cominco endeavored. P. 483. (b) EPA may issue a stop-construction order, under CAA 113(a)(5) and 167, if a state permitting authority's BACT selection is not reasonable. Pp. 484-496. (1) EPA has rationally construed CAA's BACT definition, 42 U. S. C. 7479(3), and the statute's listing of BACT as a "[p]reconstruction requiremen[t]" for the PSD program, 7475(a)(1) and (4), to mandate a determination of BACT faithful to the statute's definition. EPA urges that state permitting authorities' statutory discretion is constrained by 7479(3)'s strong, normative terms "maximum" and "achievable." EPA accordingly reads 113(a)(5) and 167 to empower the federal Agency to check a state agency's unreasonably lax BACT desig-


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