Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 20 (2004)

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480

ALASKA DEPT. OF ENVIRONMENTAL CONSERVATION v. EPA

Opinion of the Court

134-135. Cominco also invoked the need for "[i]ndustrial development in rural Alaska." Id., at 135.

On December 10, 1999, ADEC issued the final permit and technical analysis report. Once again, ADEC approved Low NOx as BACT for MG-17 "[t]o support Cominco's Red Dog Mine Production Rate Increase Project, and its contributions to the region." Id., at 208. ADEC did not include the economic analysis EPA had suggested. Id., at 152-246. Indeed, ADEC conceded again that it had made "no judgment . . . as to the impact of . . . [SCR's] cost on the operation, profitability, and competitiveness of the Red Dog Mine." Id., at 207. Nonetheless, ADEC advanced, as cause for its decision, SCR's adverse effect on the mine's "unique and continuing impact on the economic diversity of th[e] region" and on the venture's "world competitiveness." Id., at 208. ADEC did not explain how its inferences of adverse effects on the region's economy or the mine's "world competitiveness" could be made without financial information showing SCR's impact on the "operation, profitability, and competitiveness" of the mine. Id., at 207, 299. Instead, ADEC reiterated its rural Alaska utility analogy, and again compared SCR's cost to the costs of other, less stringent, control technologies. Id., at 205-207.

The same day, December 10, 1999, EPA issued an order to ADEC, under 113(a)(5) and 167 of the Act, 42 U. S. C. 7413(a)(5) and 7477, prohibiting ADEC from issuing a PSD permit to Cominco "unless ADEC satisfactorily documents why SCR is not BACT for the Wartsila diesel generator [MG-17]." App. to Pet. for Cert. 36a. In the letter accompanying the order, the Agency stated that "ADEC's own analysis supports the determination that BACT is [SCR], and that ADEC's decision in the proposed permit therefore is both arbitrary and erroneous." App. 149.

On February 8, 2000, EPA, again invoking its authority under 113(a)(5) and 167 of the Act, issued a second order,

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