Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 24 (2004)

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Opinion of the Court



Centrally at issue in this case is the question whether EPA's oversight role, described by Congress in CAA 113(a)(5) and 167, see supra, at 473-474, extends to ensuring that a state permitting authority's BACT determination is reasonable in light of the statutory guides. Sections 113(a)(5) and 167 lodge in the Agency encompassing supervisory responsibility over the construction and modification of pollutant emitting facilities in areas covered by the PSD program. 42 U. S. C. 7413(a)(5) and 7477. In notably capacious terms, Congress armed EPA with authority to issue orders stopping construction when "a State is not acting in compliance with any [CAA] requirement or prohibition . . . relating to the construction of new sources or the modification of existing sources," 7413(a)(5), or when "construction or modification of a major emitting facility . . . does not conform to the requirements of [the PSD program]," 7477.

The federal Act enumerates several "[p]reconstruction requirements" for the PSD program. 7475. Absent these, "[n]o major emitting facility . . . may be constructed." Ibid. One express preconstruction requirement is inclusion of a BACT determination in a facility's PSD permit. 7475(a) (1) and (4). As earlier set out, see supra, at 472, the Act defines BACT as "an emission limitation based on the maximum degree of reduction of [a] pollutant . . . which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [a] facility. " 7479(3). Under this formulation, the permitting authority, ADEC here, exercises primary or initial responsibility for identifying BACT in line with the Act's definition of that term.

All parties agree that one of the "many requirements in the PSD provisions that the EPA may enforce" is "that a

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