Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 21 (2004)

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

Opinion of the Court

this time prohibiting Cominco from beginning "construction or modification activities at the Red Dog mine." App. to Pet. for Cert. 49a. A third order, issued on March 7, 2000, superseding and vacating the February 8 order, generally prohibited Cominco from acting on ADEC's December 10 PSD permit but allowed limited summer construction. Id., at 62a-64a. On April 25, 2000, EPA withdrew its December 10 order. App. 300; App. to Pet. for Cert. 6a. Once ADEC issued the permit, EPA explained, that order lacked utility. On July 16, 2003, ADEC granted Cominco a PSD permit to construct MG-17 with SCR as BACT. Letter from Theodore B. Olson, Solicitor General, to William K. Suter, Clerk of the Court (Aug. 21, 2003). Under the July 16, 2003, permit, SCR ceases to be BACT "if and when the case currently pending before the Supreme Court of the United States of America is decided in favor of the State of Alaska." ADEC, Air Quality Control Construction Permit, Final Technical Analysis Report, Permit No. 9932-AC005, Revision 2, p. 7.

The day EPA issued its first order against Cominco, February 8, 2000, ADEC and Cominco petitioned the Court of Appeals for the Ninth Circuit for review of EPA's orders. App. 11. The Agency initially moved to dismiss, urging that the Court of Appeals lacked subject-matter jurisdiction. In an order released March 27, 2001, the Ninth Circuit concluded that it had adjudicatory authority pursuant to 42 U. S. C. 7607(b)(1), which lodges jurisdiction over challenges to "any . . . final [EPA] action" in the Courts of Appeals. Alaska v. United States EPA, 244 F. 3d 748, 750-751.10

The Court of Appeals resolved the merits in a judgment released July 30, 2002. 298 F. 3d 814 (CA9). It held that

10 At oral argument, counsel for EPA confirmed that the Agency no longer questions the Court of Appeals' adjudicatory authority, satisfied that the finality requirement was met because the stop-construction order imposed "new legal obligations on Cominco." Tr. of Oral Arg. 43-44 (punctuation omitted).

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